Opinion
No. 3075/10.
2010-09-13
Junie PERPIGNAN, Plaintiff, v. Gotmattie PERSAUD, PGEA Corp., Mortgage Electronic Registration Systems, Inc, Indymac Bank, FSB, Home Equity Mortgage Loan Asset–Backed Trust Series INABS 2005–B and Home Equity Mortgage Loan Asset–Backed Certificate, Defendants.
(September 24, 1998 deed metes and bounds description). (Wall Street mortgages' metes and bounds description).
ALLAN B. WEISS, J.
Plaintiff Junie Perpignan moves to enjoin preliminarily defendants Home Equity Mortgage Loan Asset–Backed Trust Series INABS 2005–B and Home Equity Mortgage Loan Asset–Backed Certificate Series 2005–B (defendants Home Equity) from filing any deed, selling, transferring, renting or otherwise encumbering or entering into a contract of sale of the real property known as 101–14 92nd Street, Ozone Park, New York, and commencing any foreclosure or ejectment action or landlord-tenant proceeding against plaintiff or plaintiff's tenants, pending the outcome of this action. Defendant Wall Street Mortgage Bankers, Ltd. (Wall Street) moves pursuant to CPLR 3211(a)(7) to dismiss the amended complaint for failure to state a cause of action, and to impose sanctions upon plaintiff Perpignan, including reasonable attorneys' fees and costs. Defendant Mortgage Electronic Registration Systems, Inc. (MERS) moves pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint asserted against it with prejudice. The motions are joined together for determination as follows:
Junie Perpignan entered into a contract dated November 21, 2000, with P.G.E.A. Corp. s/h/i/a PGEA Corp. (PGEA) for the purchase of real property with an address known as 101–14 92nd Street, Ozone Park, New York (the contract of sale). At the time of the execution of the contract, two two-family houses were already being constructed on the same lot, and Perpignan was to purchase the one which was 90% complete. It appears that it was planned the property would be subdivided into two separate tax lots. When PGEA refused to close title, Perpignan commenced an action on August 9, 2001, against PGEA only, entitled Perpignan v. P.G.E.A. Corp. (Supreme Court, Queens County, Index No. 20975/2001), asserting a claim for specific performance, or in the alternative, to recover monetary damages. On August 9, 2001, Perpignan filed a notice of pendency dated July 26, 2001, against the property designated Block 9098, Lot 11.
On November 7, 2003, Perpignan commenced another action, entitled Perpignan v. Persaud, (Supreme Court, Queens County, Index No. 26267/2003), against Gomattie Persaud, an officer and majority shareholder of PGEA, and David I. Insanally, Esq., as the escrowee of the down payment on the purchase price, wherein Perpignan alleged that Persaud (as opposed to PGEA) had record title to the property known as 101–16 92nd Street, Ozone Park, New York, Block 9098, Lot 11, by virtue of a deed dated September 24, 1998. That deed allegedly described the premises as:
“All that certain plot, piece and parcel of land, with the buildings and improvements erected, situate, lying and being at Woodhaven, in the Fourth Ward of the Borough of Queens, City and State of New York, known and designated on a certain map entitled Revised Map Number 8 of Woodhaven Centre property, Town of Jamaica, Queens County, belonging to the estate of John R. Pitkin, deceased and others, surveyed and drawn January 1989, by Jas F. Deehan, successor to the late Martin G. Johnson,' and filed in the Queens County Clerk's Office April 27, 1888, as and by lots numbered Forty–Two (42) and Fifty–One (51) in block number Thirty–Four (34), bounded and described as follows:
BEGINNING at a point on the westerly side of Bigelow Place, distant one hundred twenty-five (125) feet southerly from the corner formed by the intersection of the westerly side of Bigelow Place with the southerly side of Broadway, running thence westerly parallel with Broadway, one hundred (100) feet thence southerly parallel with Bigelow Place fifty (50) feet, thence easterly parallel with Broadway, one hundred (100) feet to the westerly side of Bigelow Place, thence northerly along the westerly side of Bigelow Place, fifty (50) feet to the point or place of BEGINNING.”
(September 24, 1998 deed metes and bounds description).
Perpignan also alleged that Persaud controlled PGEA, and had caused the corporation to breach its obligations under the contract of sale, by wrongfully demanding payment of additional sums of money, beyond the contract purchase price, as a condition of closing. Perpignan sought to impress a constructive trust against the property and enjoin Persaud from disposing of it prior to the resolution of her claim against PGEA. In connection with that action (Index No. 26267/2003), Perpignan filed, on November 7, 2003, a second notice of pendency dated October 31, 2003 against the property designated Block 9098, Lot 11.
By order dated August 18, 2004, the second action (Index No. 26267/2003) was consolidated with the first action under Index No. 20975/2001 for all purposes under Index No. 20975/2001 ( see Perpignan v. P.G.E.A. Corp., [Supreme Court, Queens County, Index No. 20975/2001] ).
Thereafter, on September 20, 2004, during the pendency of the consolidated action (under Index No. 20975/2001), defendant Persaud, in his individual capacity, obtained first and second mortgage loans from defendant Wall Street in the principal amounts of $484,400.00 and $60,550.00 respectively, with interest. Both mortgages described the mortgaged property as 101–14 92nd Street, Ozone Park, New York, but their metes and bounds descriptions, while identical to each other, did not encompass the full lot described in the September 24, 1998 deed metes and bounds description. Rather, the Wall Street mortgages described the mortgaged premises as:
“ALL that certain plot, piece or parcel of land, situate lying and being at Woodhaven, in the Fourth Ward of the Borough and County of Queens, City and State of New York, bounded and described as follows:
BEGINNING at a point on the westerly side of 92nd Street (formerly Bigelow Place), distant 125.11 feet southerly from the corner formed by the intersection of the westerly side of 92nd Street with the southerly side of 101st Avenue (formerly Broadway);
RUNNING THENCE westerly parallel with the southerly side of 101st Avenue, 100.08 feet;
THENCE southerly parallel with the westerly side of 92nd Street, 25.02 feet;
THENCE easterly parallel with the southerly side of 101st Avenue, 100.08 feet to the westerly side of 92nd Street;
THENCE northerly along the westerly side of 92nd Street, 25.02 feet to the point or place of BEGINNING.”
(Wall Street mortgages' metes and bounds description).
The Wall Street mortgages were recorded on November 4, 2004 and filed against Block 9098, Lot 110 (as opposed to Block 9098, Lot 11), and assigned to defendant MERS, by assignments dated September 20, 2004, and in turn, MERS assigned the senior Wall Street mortgage to nonparty IndyMac Bank FSB a/k/a IndyMac Federal Bank (IndyMac) by assignment dated December 19, 2007. The various assignments also were indexed against Block 9098, Lot 110. Perpignan never sought to join Wall Street, or its successors in interest, as party defendants to the consolidated action (Index No. 20975/2001).
By notice of motion dated December 22, 2004, Persaud moved, within the confines of the consolidated action (Index No. 20975/2001), to partially vacate the notice of pendency filed on August 9, 2001. Persaud asserted that such notice of pendency was filed against Block 9098, Lot 11, which had covered two properties with separate property addresses of 101–14 92nd Street, Ozone Park, New York and 101–16 92nd Street, Ozone Park, New York, but that thereafter, the lot had been separated into two lots, with separate deeds, houses, certificates of occupancy and tax bills. Persaud further asserted that the portion of the original lot with the property address of 101–16 92nd Street was not the subject of the consolidated action, and therefore, the notice of pendency should be vacated to the extent it was filed against 101–16 92nd Street. A review of the papers on file with the clerk, indicates that in support of his motion, Persaud offered a copy of a deed dated June 29, 2004, to show he had conveyed to himself a portion of his property previously comprising Block 9098, Lot 11. The June 29, 2004 deed indicated the property conveyed was known as “101–14 92nd Street, OZONE PARK, NEW YORK,” and “Block 9098 Lot NEW LOT 110 PART OF OLD LOT 11.” Its metes and bounds description, however, was as follows:
“ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Borough and County of Queens, City and State of New York, bounded and described as follows:
BEGINNING at a point on the westerly side of 92nd Street distant 125.11 feet southerly from the corner formed by the intersection of the westerly side of 92nd Street and the southerly side of 101st Avenue;
RUNNING THENCE westerly parallel with the southerly side of 101st Avenue, 100.08 feet;
THENCE southerly parallel with the westerly side of 92nd Street, 25.02 feet;
THENCE easterly parallel with the southerly side of 101st Avenue and part of the distance through a party wall, 100.08 feet to the westerly side of 92nd Street;
THENCE southerly along the westerly side of 92nd Street, 25.02 feet to the point or place of BEGINNING”
(June 29, 2004 deed metes and bounds description).
Although such description purports to have the eastern boundary of the parcel meeting the “Beginning” point, in fact, the description leaves the parcel unbounded on the eastern side, insofar as it describes the eastern boundary as heading in a southerly direction on the west side of 92nd Street, as opposed to a northerly direction ( cf. the metes and bounds description found in the Wall Street mortgages).
Persaud also offered copies of the certificates of occupancy for the premises known as 101–14 92nd Street, Block 9098, Lot 110, and the premises known as 101–16 92nd Street, Block 9098, Lot 11.
Perpignan opposed the motion contending, among other things, that the street address of the property where her house was to be built was 101–16 92nd Street.
By order dated March 3, 2005, the court denied the motion by Persaud to partially vacate the notice of pendency. The court determined that at the time (August 9, 2001) of the filing of the notice of pendency, the property “in question” had had a single block and lot number, but thereafter, separate deeds and tax bills were issued and two houses were built. The court also determined Persaud had presented no legal authority in support of his request to modify the notice of pendency.
Thereafter, following a nonjury trial, the court in the consolidated action under Index No. 20975/2001, determined that Perpignan had been ready, willing and able to close on or after January 15, 2001, and that PGEA and Persaud, as the alter ego of PGEA, had breached the contract of sale by wilfully defaulting in closing title on January 15, 2001, the law day for the closing. The court awarded Perpignan the relief sought pursuant to paragraph “a” of the “Wherefore” clause of the complaint therein dated October 3, 2003. Paragraph “a” of the “Wherefore” clause sought that a trust be impressed upon the real property “described in the complaint” and Persaud be declared the trustee and hold the legal title to the property in trust for the benefit of Perpignan, and a deed be executed by Persaud conveying title to Perpignan in accordance with the terms of the contract of sale between Perpignan and PGEA dated November 21, 2000) ( see Index No. 20975/2001, memorandum decision, dated February 4, 2008, Dollard, J).
Persaud then executed a deed dated April 16, 2008 in favor of Perpignan (the Persaud deed). The April 16, 2008 deed contains a legal description which is identical to the metes and bounds description found in the September 24, 1998 deed (encompassing the entire former lot Block 9098, Lot 11). The Persaud deed was recorded on May 14, 2008, and indexed against Block 9098, Lot 110.
In addition, Perpignan obtained a judgment dated August 4, 2008, in the consolidated action whereby the pleadings were conformed to the proof, and a trust was impressed upon the property identified as “101–14 92nd STREET, OZONE PARK, NEW YORK,”Block 9098, LOT 11” and described as:
“ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Borough and County of Queens, City and State of New York, bounded and described as follows:
BEGINNING at a point on the westerly side of 92nd Street distant 125.11 feet southerly from the corner formed by the intersection of the westerly side of 92nd Street and the southerly side of 101st Avenue;
RUNNING THENCE westerly parallel with the southerly side of 101st Avenue, 100.08 feet;
THENCE southerly parallel with the westerly side of 92nd Street, 25.02 feet;
THENCE easterly parallel with the southerly side of 101st Avenue and part of the distance through a party wall, 100.08 feet to the westerly side of 92nd Street;
THENCE southerly along the westerly side of 92nd Street, 25.02 feet to the point or place of BEGINNING.”
(Judgment metes and bounds description).
The eastern boundary error, which appears in the metes and bounds description of the June 29, 2004 deed, reappears in the judgment ( see n 1).
The judgment in the consolidated action also provided that Persaud execute, within 30 days, a deed to convey a fee simple interest in the property described therein in favor of Perpignan and granted Perpignan a money judgment against PGEA Corp. and Insanally, as stakeholder, in the amount of $1,240.00, plus costs and disbursements. It is unclear whether Persaud executed any deed after the issuance of the judgment, having already executed the Persaud deed.
Nevertheless, the metes and bound description in the Persaud deed does not conform with the Judgment metes and bounds description.
On December 18, 2007, IndyMac commenced a foreclosure action with respect to the senior Wall Street mortgage in the original principal amount of $484,400.00, and filed a notice of pendency under Block 9098, Lot 110. IndyMac named MERS as a defendant in the foreclosure action, as the holder of the junior Wall Street mortgage, but did not name Perpignan as a defendant therein. IndyMac obtained a judgment of foreclosure and sale dated April 16, 2008 ( see IndyMac Bank F.S.B. v. Persaud, [Supreme Court, Queens County, Index No. 31198/2007] ). A referee's deed for the mortgaged premises was executed and delivered to defendants Home Equity on or about October 22, 2008. The referee's deed is recorded against Block 9098, Lot 110, and contains a metes and bounds description which matches the Wall Street mortgages' metes and bounds description.
Plaintiff Perpignan subsequently commenced this action on February 5, 2010, by filing a copy of the summons and complaint, seeking, among other things, to quiet title to the property with the property address 101–14 92nd Street, Ozone Park, New York. She also filed a notice of pendency which identifies the property as the subject of this action as Block 9098, Lot 10, and contains a metes and bounds description which is identical to the Judgment metes and bounds description
Again, the Judgment metes and bounds description is erroneous with respect to the eastern boundary ( see n 1).
Plaintiff Perpignan obtained the instant order to show cause dated February 5, 2010 to preliminarily enjoin defendants Home Equity from filing any deed, selling, transferring, renting, encumbering the disputed property, entering into a contract of sale for the disputed property, or commencing any foreclosure or ejectment action, or landlord-tenant proceedings against her or her tenants, pending the outcome of this action. Defendants Home Equity opposed the motion for a preliminary injunction.
Prior to the return date of the order to show cause, plaintiff Perpignan served and filed an amended complaint. In her amended complaint dated February 8, 2010, plaintiff Perpignan alleges that she is the owner of the disputed property, and that defendants have no right, title or interest therein. Plaintiff Perpignan claims that defendant Persaud, despite the existence of the notice of pendency filed on August 9, 2001, took out the Wall Street mortgage loans, for the purpose and intent of defrauding his creditors, including her, and without fair consideration. She also claims that defendants Wall Street MERS and Home Equity, and nonparty Indymac, were aware of such notice of pendency against the disputed property, and had notice of her claims relative to the property. Plaintiff Perpignan alleges that defendants Wall Street, MERS and nonparty Indymac, in turn, actively participated in the fraudulent conveyance by defendant Persaud, by making the mortgage loans or assigning them with an intent to defraud creditors, including her, and without fair consideration, but with knowledge of her claims. Plaintiff Perpignan also alleges that defendants Persaud, Wall Street, MERS, and nonparty Indymac are indebted to her for the amount of the Wall Street mortgages, have not paid any of such debt, and have no other assets out of which the debt can be satisfied other than out of the equity of the disputed property. Plaintiff Perpignan additionally alleges that defendants Home Equity and nonparty Indymac also actively participated in the fraudulent conveyance by purchasing the disputed property, with the intention of defrauding her out of the property. As a seventh cause of action pursuant to article 15 of the RPAPL to compel the determination of conflicting claims to the disputed property, plaintiff Perpignan seeks a judicial declaration, in effect, that the Wall Street mortgages and the referee's deed were void ab initio and she owns such property free and clear of the Wall Street mortgages and the referee's deed. Plaintiff Perpignan also seeks an accounting, an award of monetary damages and attorneys' fees, and a permanent injunction, enjoining defendants Home Equity from conveying or encumbering the disputed property or commencing any foreclosure action, landlord-tenant proceeding or ejectment action against her or her tenants.
In lieu of serving answers, defendants Wall Street and MERS each moved to dismiss the amended complaint asserted against them.
To the extent defendants Wall Street and MERS seek to dismiss the amended complaint asserted against them, plaintiff Perpignan has failed to allege any adverse claims made by defendants Wall Street and MERS to any right, title or interest in the disputed property, or which appear from the public records ( seeRPAPL 1501[a] ). Rather, plaintiff Perpignan alleges that the only interests ever held by Wall Street and MERS in the disputed property were the Wall Street mortgages. Plaintiff Perpignan also alleges Wall Street and MERS subsequently assigned such mortgages and she makes no claim that they retained any right to, or interest in, the Wall Street mortgages.
To the extent plaintiff Perpignan asserts claims against defendants Wall Street and MERS for damages based upon fraudulent conveyance, she has failed to allege that Wall Street or MERS did anything to encourage defendant Persaud to encumber the disputed property in violation of the contract of sale as a means of defrauding Perpignan. Plaintiff Perpignan makes no specific allegations that the making or assignments of the Wall Street mortgages involved any secret arrangements with Persaud to allow him to withdraw equity from the property in an effort to defraud Perpignan, or constituted anything other than arms-length transactions between a borrower and a lender. Thus, the amended complaint fails to state a cause of action against defendants Wall Street and MERS. That branch of the motion by defendant Wall Street to dismiss the amended complaint asserted against it is granted. That branch of the motion by Wall Street to impose sanctions against plaintiff Perpignan, including an award of attorneys'fees, is denied. The motion by defendant MERS to dismiss the amended complaint asserted against it is granted.
With respect to the motion by plaintiff for a preliminary injunction, it is well settled that to be entitled to preliminary injunctive relief, the movant must establish (1) a likelihood of success on the merits, (2) irreparable injury in the absence of an injunction, and (3) a balance of the equities in the movant's favor ( seeCPLR 6301; W.T. Grant Co. v. Srogi, 52 N.Y.2d 496, 517 [1981];Stangel v. Chen, 74 AD3d 1050 [2010];Ginsburg v. Ock–A–Bock Community Assn., Inc., 34 AD3d 637 [2006] ). In support of her motion for a preliminary injunction, plaintiff Perpignan asserts that her claims are meritorious, and that absent injunctive relief, she will suffer irreparable harm.
Defendants Home Equity oppose the motion for a preliminary injunction, asserting that plaintiff Perpignan cannot establish a likelihood of success, because the Wall Street mortgages were granted after the expiration of the first notice of pendency filed, successive notices of pendency are not permitted, and the referee's deed issued in the foreclosure action conveyed ownership to the property described therein to defendants Home Equity free and clear of any interest held by plaintiff Perpignan.
Plaintiff Perpignan makes no claim that she recorded the contract of sale to place potential purchasers or encumbrancers on notice of her rights under the contract, or that she recorded the Persaud deed before the Wall Street mortgages were recorded. Nor does plaintiff Perpignan dispute that the first notice of pendency filed against the property lapsed before the making of the Wall Street mortgages. She asserts, however, that by such date, i.e. September 20, 2004, the second notice of pendency filed against the property with respect to the second action under Index No. 26267/2003 was still in effect. She also asserts it gave notice to defendant Wall Street of her claims in the second action (Index No. 26267/2003), and bound defendant Wall Street, and its successors in interest and assignees, to all the proceedings therein, including the subsequent consolidation of such action with the first action, and the issuance of the judgment in the consolidated action (under Index No. 20975/2001), as if Wall Street, and its assignees and successors in interest, were parties to the consolidated action. Plaintiff Perpignan argues that the mortgage liens acquired by defendant Wall Street were fully subject to the subsequent judgment in the action under Index No. 20975/2001, and therefore, were inferior to her enforceable ownership interest in the property. She also argues, that because she was not named or joined as a party to the foreclosure action brought by Indymac (Index No. 31198/2007), her ownership interest in the subject property was not foreclosed therein.
With respect to the issue of the likelihood of success, “[a]rticle 65 of the CPLR sets forth the authority and procedural requirements for securing a notice of pendency. Once the notice has been properly filed with the county clerk where the property is situated ( seeCPLR 6511), it puts the world on notice of the plaintiff's potential rights in the action and thereby warn[s] all comers that if they then buy the realty or lend on the strength of it or otherwise rely on the defendant's right, they do so subject to whatever the action may establish as the plaintiff's right' (Siegel, New York Practice § 334, at 509 [3d ed]; see alsoCPLR 6501)” (Matter of Sakow, 97 N.Y.2d 436, 440 [2002] ).
To the extent an issue exists as to whether the first and second notices of pendency could have served to provide constructive notice to defendant Wall Street of the claimed interest by plaintiff in the disputed property insofar as the notices were indexed against Block 9098, Lot 11, and the Wall Street mortgages were indexed against Block 9098, Lot 110, it appears that a title searcher performing a title search on behalf of defendant Wall Street would have readily discovered the September 28, 1994 deed in the chain of title related to the mortgaged premises, and would have found the notices of pendency filed against Block 9098, Lot 11. For example, the copy of the computer printout from Automated City Register Information System (ACRIS) website of the Office of the City Register, New York City Department of Finance ( see Exhibit E, annexed to the affirmation dated July 30, 2010 of Michael Stevens, counsel for plaintiff Perpignan), indicates that a deed from defendant Persaud to Persaud was recorded against Block 9098, Lot 110 on September 9, 2004. To the extent such reference is to the June 29, 2004 deed, that deed makes specific mention of “OLD LOT 11.”
With respect to the issue of the validity of the first notice of pendency, a notice of pendency is effective for a period of three years and may be extended by court order for additional three year periods upon good cause shown, only prior to the notice's expiration (CPLR 6513; see Matter of Sakow, 97 N.Y.2d 436 [2002] ). A failure to timely obtain the extension will invalidate the effectiveness of the notice of pendency ( see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C6513, at 512). Furthermore, “a lapsed notice of pendency may not be revived” (Matter of Sakow, 97 N.Y.2d 436, 442 [2002] ).
The first notice of pendency filed by plaintiff Perpignan in the action under Index No. 20975/2001 lapsed on August 9, 2004, at the end of its statutory three-year duration (CPLR 6513; Robbins v. Goldstein, 32 A.D.2d 1047 [1969] ).
The order dated March 3, 2005 in the consolidated action under Index No. 20975/2001 cannot be considered to have extended the original notice of pendency, because such order was not filed, recorded and indexed prior to the expiration of the three-year period and prior to the consolidation of the two actions ( seeCPLR 6513; Matter of Sakow, 97 N.Y.2d 436;cf. RKO Properties, Ltd. v. Boymelgreen, 31 AD3d 625 [2006];Thelma Sanders & Associates, Inc. v. Hague Development Corp., 131 A.D.2d 462 [1987] ).
Under CPLR 6513(c), a second notice of pendency may not be filed in any action in which a previously filed notice of pendency affecting the same property had been cancelled or vacated or had expired or become ineffective. As a consequence, successive notices of pendency may not be filed in the same action ( see Deutsch v. Grunwald, 63 AD3d 872 [2009];Old World Custom Homes, Inc. v. Crane, 33 AD3d 600, 601 [2006] ).
This bar to successive filings of a notice of pendency has been applied in an action where a defendant, having had an original notice of pendency cancelled by court order, due solely to her own failure to assert any claim affecting title to, or the possession, use, or enjoyment of, the property, filed a new notice of pendency in relation to new counterclaim for imposition of constructive trust ( see Old World Custom Homes, Inc. v. Crane, 33 AD3d 600 [2006] ).
An exception to this rule is provided in CPLR 6516, related to foreclosure actions instituted under RPAPL 1331.
The rule also has been applied in an action which concerned the same real property and alleged breach of a purchase agreement as had been involved in a prior lawsuit, where the original notice of pendency filed in the first action was cancelled because the plaintiff had failed to serve the summons within 30 days of the filing of that (first) notice of pendency ( see Weiner v. MKVII Westchester, LLC, 292 A.D.2d 597 [2002] [the addition of two defendants to the second action who were not named in the first action did not mandate a different result] ). The rule likewise was applied in Chiulli v. Cross Westchester Development Corp., (134 A.D.2d 559 [1987] ), where the specific performance action underlying the second notice proceeded on the same contract and theory as the claim underlying the first notice of pendency filed in a prior action, and the addition of an allegedly new plaintiff was held to be more a change of form than of substance ( see also Israelson v. Bradley, 308 N.Y. 511 [1955] ).
On the other hand, a successive filing of a notice of pendency is permissible on the basis of “a significant change in circumstances” (see Bonded Concrete Inc. v. Johnson, 280 A.D.2d 758, 760 [2001] [new, allegedly illegal action had been taken by the defendants in selling the property subject to a lease held by the plaintiff, after the filing of the first notice of pendency in relation to an action based upon breach of the lease] ).
In this instance, the second notice of pendency was filed in relation to a second action at a time when the first filed notice of pendency affecting the same property had yet to expire and had not been cancelled or vacated. In addition, defendants Home Equity make no claim that plaintiff Perpignan failed to serve the summons and complaint in the initial action or in the second action, in a timely fashion, or otherwise failed to comply with the statutory requirements for filing a notice of pendency. Moreover, it appears plaintiff Perpignan had been unaware at the time of the making of the contract of sale, or the commencement of the first action under Index No. 20975/2001, that the record owner of the property was Persaud, not PGEA, thus causing her to fail to name Persaud as an individual defendant in the first action. Under such circumstances, the filing of the second notice of pendency was permissible and not violative of CPLR 6513(c), and plaintiff Perpignan thus has made a prima facie case of likelihood of success on the merits. Plaintiff Perpignan has also demonstrated that the equities favor her and that irreparable harm will result absent the issuance of a preliminary injunction ( see Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862 [1990];Ryan v. Dowicz, 306 A.D.2d 396 [2003] );cf. W.T. Grant Co. v. Srogi, 52 N.Y.2d 496,supra at 517 [1981] ).
The motion by plaintiff Perpignan for a preliminary injunction enjoining defendants Home Equity from filing any deed, selling, transferring, renting or otherwise encumbering or entering into a contract of sale of the disputed premises known as 101–14 92nd Street, Ozone Park, New York, and commencing any foreclosure or ejectment action, or landlord-tenant proceedings against plaintiff or her tenants is granted, upon condition plaintiff post an undertaking with the Clerk of the County of Queens in an amount to be fixed in the order to be settled hereon. Upon settlement of the order, the parties may submit proof and recommendations regarding the amount of the undertaking.