Opinion
1564N
August 22, 2002.
Order, Supreme Court, New York County (Marilyn Shafer, J.), entered on or about April 5, 2002, which denied the motion of non-party Safari Development Company, Ltd. to vacate a notice of pendency filed in this action on April 4, 2001 against a Manhattan apartment it owns and denied plaintiff's cross motion to consolidate this action with an action entitled Stephanie Downs v. Elmer Yuen and Safari Development Company, Ltd. (N.Y. County Index No. 121924/01) and for an attachment against the subject apartment pursuant to CPLR 6201 and 6212, unanimously reversed, on the law, without costs, the motion and cross motion granted to the extent of consolidating the actions for purposes of these motions, vacating the notices of pendency, and remanding the matter for determination of that part of plaintiff's cross motion as seeks an attachment. The Clerk is directed to cancel forthwith the two notices of pendency filed against the premises described as Unit 44A at One Central Park West, New York, N.Y. 10023, one of which was filed in this action (N.Y. County Index No. 106811/01) on April 4, 2001 and the second of which was filed on November 21, 2001 in an action entitled Stephanie Downs v. Elmer Yuen and Safari Development Company, Ltd. (N.Y. County Index No. 121924/01).
JEFFREY I. WASSERMAN for plaintiff-respondent.
JAMES E. CECCHI, for non-party-appellant.
Nardelli, J.P., Andrias, Friedman, Marlow, Gonzalez, JJ.
Despite the limited grounds for cancellation of a notice of pendency provided in CPLR 6514, where, as here, neither of the judgments demanded in both actions would "affect the title to, or the possession, use or enjoyment of, real property", the extraordinary provisional remedy of a notice of pendency pursuant to CPLR 6501 is not available and consequently must be cancelled (5303 Realty Corp. v. O Y Equity Corp., 64 N.Y.2d 313, 321-323); nor may it be used as a form of attachment (id., at 324).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.