Opinion
08-33624
11-07-2011
Schulman Family Enterprises, MARTIN L. SCHULMAN, LEE G. SCHULMAN, and JULIE SLANN, Plaintiffs, v. David B. Schulman and BSS REAL ESTATE, L.P., Defendants.
ESSEKS, HEFTER & ANGEL, LLP Attorney for Plaintiffs WICKHAM, BRESSLER, GORDON & GEASA Attorney for Defendants
ESSEKS, HEFTER & ANGEL, LLP Attorney for Plaintiffs
WICKHAM, BRESSLER, GORDON & GEASA Attorney for Defendants
Denise F. Molia, J.
Upon the following papers numbered 1 to 141 read on these motions for summary judgment, to amend pleadings, and extend notice of pendency ; Notice of Motion/ Order to Show Cause and supporting papers 1 - 28, 34 - 58, 128 - 135 ; Notice of Cross Motion and supporting papers 96 - 124 ; Answering Affidavits and supporting papers 60 - 84, 136 - 137 ; Replying Affidavits and supporting papers 31 - 33, 87 - 93, 138 - 139 ; Other memoranda of law 29 - 30, 59, 85 - 86, 94 - 95, 125, 126 - 127, 140 - 141 ; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that these motions are hereby consolidated for purposes of this determination; and it is further
ORDERED that this motion by the plaintiffs for an order pursuant to CPLR 3212 granting summary judgment in their favor as to the second, third and fourth causes of action in the complaint, and directing that the defendants execute deeds reconveying certain property to plaintiff Schulman Family Enterprises, is denied; and it is further
ORDERED that this motion by the defendants for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint is denied; and it is further
ORDERED that the defendants' motion for leave to amend the answer herein is granted, and the amended answer in the proposed form annexed to the moving papers shall be deemed served; and it is further
ORDERED that the motion by the plaintiffs for an order pursuant to CPLR 6513, extending the duration of the notice of pendency filed in this action for an additional period of three years, is granted; and it is further
ORDERED that the notice of pendency, as extended by order to show cause dated August 16, 2011 is further extended for a period of 45 days from the date of this order.
This is an action seeking, inter alia, a judgment declaring that certain property is held by the defendant David B. Schulman (David) as nominee for the plaintiff Schulman Family Enterprises (SFE), and an order directing the defendants to reconvey the property to SFE. In late 1992 and early 1993, the plaintiff Martin L. Schulman (Martin) purchased 37.682 acres of vacant land in Sagaponack, New York. Martin is the father of David, and the plaintiffs Lee G. Schulman (Lee) and Julie Slann (Julie). Six months later, Martin formed SFE, a family partnership, making his children equal partners. He then transferred the property into the partnership, and arranged for the property to be subdivided into 11 lots and an agricultural reserve. SFE conveyed two of the lots to Martin, who built a residence on the lots. In July 1994, SFE conveyed the nine remaining lots to the siblings/partners with David receiving title to four and one-half lots, Lee receiving three and one-half lots, and Julie one lot. In 2005, David conveyed his interest in the four and one-half lots to BSS Real Estate L.P. (BSS), a partnership that he created, making his three children equal partners. The plaintiffs contend that the four and one-half lots were distributed to the siblings as a convenience in order to "checkerboard" the property, keeping it in single and separate status to avoid the risk of the Town of Southampton upzoning the property, and that David obtained title as a nominee for SFE. David contends that the conveyance was absolute and that he was entitled to convey the property to BSS, and that he is now entitled to sell the lots for the benefit of his children.
Unless the circumstances require otherwise, in deciding these motions the Court will refer to the defendants collectively as "David."
The amended complaint sets forth seven causes of action sounding in constructive trust, promissory estoppel, breach of contract, breach of the partnership agreement, breach of fiduciary duty, adverse possession, and injunctive relief, respectively. The plaintiffs now move for summary judgment on the second, third and fourth causes of action for promissory estoppel, breach of contract, and breach of the partnership agreement. In support of the motion, the plaintiffs submit, among other things, the pleadings, multiple affidavits, deeds reflecting the relevant conveyances herein, David's responses to interrogatories, the SFE partnership agreement, and excerpts of the deposition transcripts of the parties and two nonparty witnesses. The Court notes that the depositions of the two nonparty witnesses are unsigned, and that the plaintiffs have failed to submit proof that the transcripts were forwarded to the witnesses for their review (see CPLR 3116 [a]). Under the circumstances, the deposition testimony of the nonparty witnesses is not in admissible form (see Marmer v IF USA Express, Inc. , 73 AD3d 868, 899 NYS2d 884 [2d Dept 2010]; Martinez v 123-16 Liberty Ave. Realty Corp. , 47 AD3d 901, 850 NYS2d 201 [2d Dept 2008]; McDonald v Mauss , 38 AD3d 727, 832 NYS2d 291 [2d Dept 2007]).
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hospital , 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 487 NYS2d 316 [1985]). The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact ( Roth v Barreto , 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; Rebecchi v Whitmore , 172 AD2d 600, 568 NYS2d 423 [2d Dept 1991]; O'Neill v Fishkill , 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]). Furthermore, the parties' competing interest must be viewed "in a light most favorable to the party opposing the motion" ( Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co. , 168 AD2d 610, 563 NYS2d 449 [2d Dept 1990]).
Initially, the Court notes that the plaintiffs acknowledge that there are issues of fact requiring a trial of their second and third causes of action. Regarding their fourth cause of action for breach of the partnership agreement, the gravamen of their argument is that Lee, who acted as the management committee pursuant to the subject partnership agreement, did not have the authority to make a fee simple absolute conveyance of the four and one-half lots (contested lots) to David. The plaintiffs contend that Lee did have authority to convey real property owned by the partnership to nominees, which he did in this instance. It is undisputed that the siblings entered into a general partnership agreement dated July 31, 1993, which was executed on December 27, 1993 (agreement or partnership agreement). The agreement provides in Article II, paragraph 2.1 (F) that the partnership is empowered to "record title to assets of the Partnership in the name of a nominee or custodian, including ... the name of any Partner." The agreement also provides in Article V, paragraph 5.8 (A) that the partnership shall not, without the consent of a majority in interest of the partnership, "[s]ell, give, convey, assign or otherwise transfer ... any of the assets of the Partnership (whether before or after dissolution) where the then market value ... exceeds $20,000 in each instance." It is undisputed that a majority in interest of the partnership did not consent to the absolute conveyance of the contested lots to David, that David did not pay any consideration for the conveyance of the lots, and that each of the contested lots is valued in excess of $20,000.
In his affidavit in support of the motion, Lee swears that, when he conveyed the nine lots, it was his understanding that he was placing them in the names of the individual partners as nominees for SFE for the purposes of "checkerboarding," and to protect their current zoning. He states that he did not have the authority to convey fee ownership, and that he never met with David or Julie to discuss such a conveyance or gift. He concludes by declaring that, if David prevails in this litigation, he and David will benefit while Julie will only receive eleven percent of the value of the partnership. At his deposition, Lee testified that he and his siblings made equal capital contributions upon the formation of SFE, although he was uncertain whether the funds came from them or their father. He indicated that SFE has filed annual tax returns reflecting a one-third interest in each partner, and that he paid the real property taxes on the nine lots personally. Lee stated that he received the deeds to convey the nine lots in the mail, that he understood that they were for checkerboarding purposes, and that he did not think anything about the unequal distribution because the conveyances were to the partners as nominees for SFE.
Julie submits an affidavit in support of the motion in which she swears that her father, Martin, signed the partnership agreement as her attorney-in-fact. She was aware in the early 1990s that the partnership's real property "was going to be or had been" checkerboarded. However, she was not certain as to what that meant, and she was not aware that Lee had conveyed title to the partners as nominees. Julie further swears that she did not discuss with Lee and David the placing of record title of the nine lots into the individual names of the partners, and that she did not consent to the absolute conveyance of the contested lots to David. Julie's deposition testimony, submitted herein in excerpt form, essentially conforms to that of her affidavit.
The excerpt of Martin's deposition testimony consists of two pages and merely sets forth that he completed the subdivision of the subject 37 plus acres after he purchased the property, and that he hired an attorney to do the subdivision work.
Here, the plaintiffs have failed to establish their entitlement to summary judgment on their fourth cause of action for breach of the partnership agreement. Assuming arguendo, that the plaintiffs have shown a lack of authority on Lee's part to make an absolute conveyance of the contested lots, and the lack of consent of a majority in interest of the partnership for such a conveyance, the plaintiffs have failed to allege, let alone establish, how David's conveyance of the contested lots to BSS violated a provision of the partnership agreement. In addition, there are issues of fact regarding the extent of David's fiduciary duty under said agreement. Failure to make a prima facie showing of entitlement to summary judgment requires a denial of the motion, regardless of the sufficiency of the opposing papers (see, Alvarez v Prospect Hosp. , supra; Winegrad v New York Univ. Med. Ctr. , supra). Because summary judgment deprives the litigant of his or her day in court, it is considered a "drastic remedy" which should be invoked only when there is no doubt as to the absence of triable issues ( Andre v Pomeroy , 35 NY2d 361, 364 [1974]; Elzer v Nassau County , 111 AD2d 212 [2d Dept 1985]). Indeed, where there is any doubt as to the existence of triable issues, or where the issue is even arguable, the Court must deny the motion ( Chilberg v Chilberg , 13 AD3d 1089, 788 NYS2d 533 [4th Dept 2004], rearg denied 16 AD3d 1181, 792 NYS2d 368 [4th Dept 2005]; Barclay v Denckla , 182 AD2d 658, 582 NYS2d 252 [2d Dept 1992]; Cohen v Herbal Concepts, Inc. , 100 AD2d 175, 473 NYS2d 426 [1st Dept 1984], affd 63 NY2d 379, 482 NYS2d 457 [1984]). Accordingly, the plaintiffs' motion for summary judgment is denied.
David now moves for an order granting summary judgment dismissing the complaint. In support of the motion, David submits, among other things, his affidavit, the complete transcripts of the depositions of the plaintiffs, the deposition transcripts of the above-mentioned nonparty witnesses, and the deed from him conveying the contested lots to BSS. The Court notes that the deposition transcripts of the nonparty witnesses are inadmissible for the same reasons sets forth herein above. The gravamen of David's argument in support of his motion is that the plaintiffs cannot establish the elements of the first six causes of action in the complaint.
At his deposition, Martin testified that he purchased the 37 plus acres in 1993. Shortly thereafter, he learned that the prior owner had almost completed a subdivision of the property, and he hired an attorney, David Gilmartin (Gilmartin), to complete the work based on the existing application. His intention was to give most of the property to his three children for estate tax purposes. However, he stated that "it was understood by everybody involved in this process that this was really [mine], it was being held for [me] and nothing would happen to it until [I] died," and that "I told them, they agreed, everybody knew, it was common knowledge" that he wanted to provide for his children so that they would not have the burden of paying estate tax. He indicated that SFE conveyed two of the eleven lots to him to enable him to construct a private residence. Martin further testified that Gilmartin suggested that the remaining nine lots be transferred out to protect their zoning, that Gilmartin knew that the transfers were to be done equitably, and that he never checked to see that the transfers were equal. He stated that in 1993 he placed a fence and began to cultivate an area of lawn at his residence which is located on part of one of the contested lots, that he has a claim of right to the fenced area of that lot, and that he believed he owned that area when he put up the fence.
At his deposition, Lee testified that his father purchased land on the east end of Long Island and originally set up a family partnership under the name Schulman Family Associates (SFA), with Martin receiving a one per cent interest and each child receiving a 33 percent interest. Thereafter, SFE was created without Martin receiving any interest therein, and the children receiving a one-third interest each. Lee stated that he had conversations with David about getting the land in equal shares and "that someday we will have access to [it]" when SFA was set up, and then also, he thought, when SFA was replaced by SFE. He indicated that Gilmartin mailed him the deeds for the all of SFE's lots, including the contested lots, for the purposes of checkerboarding the property to prevent upzoning, and that he did not know why Gilmartin distributed the lots as he did because Gilmartin did not know the siblings/partners. Lee testified that David was involved in the discussions regarding Martin's building of a home on two of the eleven original lots their Dad had purchased, that David always knew that "everything was always one-third," and that David agreed to the equal one-third partnership when SFA and SFE were set up and in numerous conversations. He indicated that the fence, pool and lawn area which encroaches on part on one of the lots in David's name (Lot 6) were built or planted in the early 1990s and that there was no family hostility at that time.
At her deposition, Julie testified that her father told her in the early 1990s that he had bought land in the Hamptons and that "it will be for you and your brothers equally divided into two-thirds (sic)." Her father also said that the land was not to be touched while he was alive except by him. She did not know all the details, but her father told her in the early 1990s that the land was being checkerboarded to protect its zoning. Julie further testified that she was never asked for money regarding the expenses of SFE.
In his affidavit in support of his motion, David swears that he never made any promises or "said anything to any person" with respect to the formation of SFE, or the transfer of the nine lots to the partners of SFE. He denies that there was any agreement that nothing was to happen to the partnership's real property until Martin died, and he states that he never signed anything in that regard. David further swears that there are no nominee agreements covering the transfers to the partners, and that the layout of the nine lots could have easily lent itself to an equal distribution of the lots if it was meant to checkerboard the lots for zoning purposes. He states that the distribution of the contested lots by Gilmartin was made with instructions, but he does not indicate who gave those instructions, and he points to Julie's unearned income from Martin's medical businesses and Lee's two-third interest in Martin's residence in the Hamptons as reasons for the unequal distribution. He indicates that he performed a title search in 2002, and that he subsequently created BSS and transferred the contested lots into BSS for the benefit of his children.
David contends that he is entitled to summary judgment regarding the plaintiffs' first cause of action for a constructive trust as he made no promises to SFE or the plaintiffs. A constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest ( Simonds v Simonds , 45 NY2d 233, 408 NYS2d 359 [1978]; Sharper v Harlem Teams for Self-Help, Inc. , 257 AD2d 329, 696 NYS2d 109 [1st Dept 1999]). In determining whether the imposition of a constructive trust is warranted to prevent an unjust enrichment, a court looks to four factors: the existence of a fiduciary or confidential relationship, a promise, a transfer in reliance thereon, and an unjust enrichment ( Bankers Sec. Life Ins. Soc. v Shakerdge , 49 NY2d 939, 428 NYS2d 623 [1980]; Matter of Wieczorek , 186 AD2d 204, 587 NYS2d 755 [2d Dept 1992]; Coco v Coco , 107 AD2d 21, 485 NYS2d 286 [2d Dept 1985]). The required promise may be inferred or implied where the totality of the transactions and the relations of the parties would render an express promise superfluous (see eg. Bankers Sec. Life Ins. Soc. v Shakerdge , supra; Matter of Wieczorek , supra; Coco v Coco , supra). Unjust enrichment is the heart of the constructive trust doctrine (see Bolla v Bolla , 10 Misc 3d 906, 810 NYS2d 853 [Sur Ct, Bronx County 2005]). "A person may be deemed to be unjustly enriched if he (or she) has received a benefit, the retention of which would be unjust (Restatement, Restitution, §1, Comment a). A conclusion that one has been unjustly enriched is essentially a legal inference drawn from the circumstances surrounding the transfer of property and the relationship of the parties. It is a conclusion reached through the application of principles of equity" ( Sharp v Kosmalski, 40 NY2d 119, 386 NYS2d 72 [1976]).
Here, David has failed to establish his entitlement to summary judgment regarding the plaintiffs' first cause of action. There are issues of fact including, but not limited to, whether David made an express or implied promise to hold the contested lots as a nominee for SFE, and whether he has been unjustly enriched by his transfer of said lots to BSS for the benefit of his children.
In addition, David has failed to establish his entitlement to summary judgment regarding the plaintiff's second cause of action for promissory estoppel. The elements of a promissory estoppel action are a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained in reliance thereon ( Schwartz v Miltz ,77 AD3d 723, 909 NYS2d 729 [2d Dept 2010]; Braddock v Braddock , 60 AD3d 84, 871 NYS2d 68 [1st Dept 2009]). Recovery under the theory of promissory estoppel is not dependent on the existence of a contract or the particulars of consideration in the classic sense. A promissory estoppel action arises out of a breached promise in circumstances under which it is fair to hold the promissor to the terms of his promise. The doctrine is often considered in terms of detrimental reliance, but more recently has been seen as grounded in a theory of promise (see LAHR Construction Corp. v J. Kozel & Son, Inc. , 168 Misc 2d 759, 640 NYS2d 957 [Sup Ct, Monroe County 1996]). "With respect to the doctrine of promissory estoppel, a promise which is expected to induce action by the promise, and does induce the action, is binding if injustice can be avoided only by enforcing the promise. Such promise may be invoked only where the aggrieved party can demonstrate the existence of a clear and unambiguous promise upon which he or she has reasonably relied, thereby sustaining injury.... Promissory estoppel is available only where a party reasonably relies on the promise and it would be unconscionable to deny enforcement of the oral agreement" Segreto v Glen Cove City School District , NY Slip Op 33311[U] [Sup Ct, Suffolk County 2010]; Kotlyarsky v New York Post , 195 Misc 2d 150, 757 NYS2d 703 [Sup Ct, Kings County 2003]). Here, there are issues of fact whether David made a promise or promises regarding the conveyance of the contested lots, and whether he promised to act as a nominee for SFE.
David has likewise failed to establish his entitlement to summary judgment regarding the plaintiffs' third, fourth, and fifth causes of action, sounding in breach of contract and breach of fiduciary duty. There are issues of fact requiring a trial herein including, but not limited to, the agreements and promises, if any, made by and amongst the parties, the obligations of the partners relative to the partnership agreement, and whether David owed a fiduciary duty regarding the conveyance of the contested lots. The court's function on summary judgment is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility (see Doize v Holiday Inn Ronkonkoma , 6 AD3d 573, 774 NYS2d 792 [2d Dept 2004]; Roth v Barreto , supra; Rennie v Barbarosa Transport, Ltd. , 151 AD2d 379, 543 NYS2d 429 [1st Dept 1989]).
Finally, David has failed to establish his entitlement to summary judgment regarding Martin and Lee's sixth cause of action for adverse possession. Under RPAPL 522, as amended L. 2008, c. 269, §5, effective July 7, 2008, a party seeking to obtain title by adverse possession on a claim not based upon a written instrument must show that the parcel was possessed and occupied "[w]here there have been acts sufficiently open to put a reasonably diligent owner on notice" (RPAPL 522 [1]) or "protected by a substantial enclosure" (RPAPL 522 [2]). The predecessor to 522 [1] required the claimant to show that the parcel was either "usually cultivated or improved" (RPAPL 522 [1]; see Almeida v Wells, 74 AD3d 1256, 904 NYS2d 736 [2d Dept 2010]; Walsh v Ellis, 64 AD3d 702, 703, 883 NYS2d 563 [2d Dept 2009]). The type of cultivation or improvement sufficient under the statute will vary with the character, condition, location and potential uses for the property and need only be consistent with the nature of the property so as to indicate exclusive ownership (see City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118, 449 NYS2d 116 [4th Dept 1982]). Additionally, a party must also satisfy the common-law requirement of demonstrating that the possession of the parcel was hostile, under claim of right, open and notorious, exclusive, and continuous for a period of 10 years or more (see, Walling v Przybylo , 7 NY3d 228, 818 NYS2d 816 [2006]; Walsh v Ellis , supra; DeRosa v DeRosa , 58 AD3d 794, 872 NYS2d 497 [2d Dept 2009]; City of Tonawanda v Ellicott Cr. Homeowners Assn., supra; Franzen v Cassarino , 159 AD2d 950, 552 NYS2d 789 [4th Dept 1990]; Woodrow v Sisson , 154 AD2d 829, 546 NYS2d 492 [3d Dept 1989]; Campano v Scherer , 49 AD2d 642, 370 NYS2d 237 [32d Dept 1975]). In this context it is unnecessary to show enmity or specific instances of hostility, rather it is sufficient to demonstrate that the possession constitutes an infringement upon the owner's rights (see Greenberg v Sutter , 257 AD2d 646, 684 NYS2d 571 [2d Dept 1999]).
Here, there are issues of fact whether Martin and Lee enclosed the subject portion of Lot 6 in the early 1990s, as they claim, who is the true owner of Lot 6, whether the possession of the aforesaid area was hostile and adverse, and whether the cultivation and improvement of the aforesaid area, along with its location and potential uses, are consistent with exclusive ownership over the statutory period.
Accordingly, David's motion for an order granting him summary judgment dismissing the complaint is denied.
David now cross-moves to amend his answer to assert the affirmative defenses of the statute of frauds and the statute of limitations. Pursuant to CPLR 3025 (b) leave to serve an amended pleading should be freely given upon such terms as are just. Leave to amend will generally be granted provided the opponent is not surprised or prejudiced by the proposed amendment, and the proposed amendment appears to be meritorious (see Kiaer v Gilligan , 63 AD3d 1009, 883 NYS2d 224 [2d Dept 2009]; Kinzer v Bederman , 59 AD3d 496, 873 NYS2d 692 [2d Dept 2009]; Charleson v City of Long Beach , 297 AD2d 777, 747 NYS2d 802 [2d Dept 2002]). Courts are unlikely to deny the request if the proposed amendments do not prejudice the opponent by changing the basic issues of the action, or, by adding significant factual allegations of which the party is unaware ( Symphonic Electronic Corp., v Audio Devices, Inc ., 24 AD2d 746, 263 NYS2d 676 [1st Dept 1965]; Rogers v South Slope Holding Corp ., 255 AD2d 898, 680 NYS2d 772 [4th Dept 1998]; see also Francis v Bein-Aime, 4 Misc 3d 1002[A], 791 NYS2d 869 [Sup Ct, Bronx County 2004]; Rodriguez v State , 153 Misc 2d 363, 581 NYS2d 972 [Ct Cl 1992]). It is also the established rule that the legal sufficiency or merits of a proposed amendment of a pleading will not be examined on the motion to amend unless the insufficiency or lack of merit is clear and free from doubt ( Vista Properties, LLC v Rockland Ear, Nose & Throat Assocs., P.C. , 60 AD3d 846, 875 NYS2d 848 [2d Dept 2009]; Goldstein v Brogan Cadillac Oldsmobile Corp., 90 AD2d 512, 455 NYS2d 19 [2d Dept 1982]). Thus, the party opposing the motion to amend, must overcome a heavy presumption of validity in favor of the movant and demonstrate that the facts alleged and relied upon in the moving papers are obviously not reliable or are insufficient ( Otis Elevator Co. v 1166 Ave. of the Americas Condominium , 166 AD2d 307, 564 NYS2d 119 [1st Dept 1990]; Daniels v Empire-Orr, Inc., 151 AD2d 370, 542 NYS2d 614 [1st Dept 1989]).
Although the courts are reluctant to allow amendments where there is lengthy delay, even where the case has been certified, courts are unlikely to deny the request if the proposed amendments do not prejudice the opponent by changing the basic issues of the action, or, by adding significant factual allegations of which the party is unaware ( Symphonic Electronic Corp., v Audio Devices, Inc ., supra; Rogers v South Slope Holding Corp ., supra). Here, the plaintiffs have failed to establish any prejudice to them, or the addition of significant factual issues of which they are unaware, should David's cross motion be granted.
The defendants' memorandum of law dated September 9, 2011, in support of their motion to amend their answer has not been considered by the Court as it fails to include an affidavit of service, and there is no indication in the record that said memorandum was received by counsel for the plaintiffs.
Accordingly, David's cross motion to amend the verified answer is granted.
The plaintiffs also move, by order to show cause dated August 16, 2011, to extend the notice of pendency filed against the contested lots. The order to show cause provides that the notice of pendency is extended pending the hearing and determination of the motion, and requires that the order be filed, recorded, and indexed prior to the expiration date. The order to show cause also provides that service upon counsel for the defendants and upon the Suffolk County Clerk be made by overnight mail on or before August 23, 2011. It appears that the order to show cause was served by overnight delivery (CPLR 2103 [b] [6]) upon both parties on August 17, 2011, and that it was recorded in the Office of the Suffolk County Clerk on August 18, 2011. The Court finds, therefore, that the plaintiff met the requirements of the order to show cause prior to the expiration date (see RKO Props. v Boymelgreen , 31 AD3d 625, 818 NYS2d 918 [2d Dept 2006]; see also Sanders & Assoc. v Hague Dev. Corp. , 131 AD2d 462, 516 NYS2d 93 [2d Dept 1987]).
Pursuant to CPLR 6513, a notice of pendency is effective for a period of three years from the date of filing, and a court may extend it for an additional three-year period upon "good cause shown," provided that the extension is requested prior to the expiration of the original three-year period (accord, Matter of Sakow , 97 NY2d 436, 741 NYS2d 175 [2002]; Aames Funding Corp. v Houston ,57 AD3d 808, 872 NYS2d 134 [2d Dept 2008]; Petervary v Bubnis , 30 AD3d 498, 819 NYS2d 267 [2d Dept 2006]). Here, the continued litigation, including the taking of multiple depositions and extensive discovery, has delayed the trial date in this action. The Court finds that the plaintiffs have demonstrated the requisite "good cause" to warrant the requested extension. In addition, the Court finds that there is no prejudice to the defendants in extending the notice of pendency, nor do the defendants indicate that there is any such prejudice.
Accordingly, upon the timely filing, recording, and indexing of this order (see, CPLR 6513), the notice of pendency is hereby extended for an additional three-year period to expire September 5, 2014. The defendant is advised to have this order filed, recorded, and indexed before the expiration of the temporary 45-day extension granted herein.
Counsel for the plaintiffs is directed to serve a copy of this order upon counsel for the defendants within twenty (20) days of the date of this order. Counsel is further directed to file proof that such service was effected as directed herein.
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J.S.C.
FINAL DISPOSITIONX NON-FINAL DISPOSITION