Opinion
October 17, 1994
Appeal from the Surrogate's Court, Kings County (Bloom, S.).
Ordered that the appeal is dismissed as academic, with costs payable by the appellant personally.
The real property in question was sold after the Surrogate's Court canceled the notice of pendency. Thus, the propriety of the order appealed from is academic. We note that the appellant could have obtained a stay pursuant to CPLR 5519 to prevent the property from being sold. Having failed to obtain such a stay, he is not now entitled to the reinstatement of the notice of pendency (see, Da Silva v. Musso, 76 N.Y.2d 436; McLaughlin, 1990 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C6514:1, 1995 Pocket Part, at 144). Accordingly, in the event that the appellant prevails in the related action, he would be limited to monetary damages, and may not recover the real property. Bracken, J.P., Lawrence, Santucci and Goldstein, JJ., concur.