Opinion
February 17, 1972
Orders, Supreme Court, New York County, entered July 8, 1971, whereby notices of pendency in actions to foreclose vendees' liens were canceled, unanimously reversed, on the law, the motions denied, and each notice of pendency reinstated. Appellant shall recover of respondents one bill of $30 costs and disbursements of these appeals. Plaintiff-appellant, having made deposits with each of the two defendants-respondents in respect of two identical contracts for purchase of contiguous parcels of real estate, elected, after making further payments, not to take title. Plaintiff sought return of the additional payments from both defendants, claiming that they were restricted by a contractual provision to the amount of the original deposits as liquidated damages. Rebuffed, plaintiff filed vendees' liens (CPLR 6501) and instituted actions to foreclose them. Special Term granted a motion to vacate the liens, holding plaintiffs to have been in default under the contract. Not only did Special Term decide the ultimate question in the action, the merits not being then before the court, but, in this preliminary proceeding, vitiated the lien in derogation of CPLR 3002 (subd. [f]).
Concur — Stevens, P.J., McGivern, Markewich, Nunez and Kupferman, JJ.