Devlin v. Knowles

(Surrogate’s Ct. Kings Cty. 9/27/03)

We represented: Respondents

Feinberg, S.

Petitioner's motion for a preliminary injunction against respondent, David Knowles, to enjoin him and restrain him from selling, mortgaging, assigning, or encumbering the premises located at 111 East 3rd Street, Brooklyn, New York is denied.

A prior motion was made by respondents asking this court to issue an order directing the clerk of the county to cancel the Notice of Pendency filed in this matter on July 14, 2000 on account of petitioner's failure to file a verified complaint with the Surrogate's court within 30 days after the filing of the lis pendens. Where the lis pendens is filed before service of the summons, i.e., before the action is commenced, which is permissible, CPLR §6512 requires that commencement occur within thirty days afterwards, (Siegel, New York Practice §6514(a) and directs the clerk of the county to cancel the Notice of Pendency filed.

This motion will be held in abeyance pending the completion of discovery at which time the parties are to submit memorandums of law relating to the motion for a preliminary injunction. The temporary restraining order shall remain in effect until that time.

All discovery is to be completed within 45 days of this order.

This constitutes the decision and order of the court.