Though it may sound like it, removing the lis pendens is not in the game Operation. A Lis Pendens, is simply a public notice of a pending lawsuit. I recently handled a dispute over a driveway easement and filed a lis pendens against the easement. Here are the legal standards:
In a dispute over easement rights, the Defendants have an absolute right to file a lis pendens. Bienstock v. Nista Const. Co., 225 A.D. 534 (1st Dept. 1929). An action seeking declaratory relief as to an easement is one “affecting the title to, or the possession, use or enjoyment of, real property” entitling a party to file a lis pendens. 416 Properties, Inc. v. Stamples, 19 A.D.2d 801 (1st Dept. 1963).
The right to file a lis pendens is codified in CPLR §6501 which permits the filing in any action in which “ the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property…”
On a motion to cancel the lis pendens, the moving party must show that the notice of pendency does not conform with the requirements under CPLR §6511(b). Gross v. Castleton Hous. Corp., 271 A.D. 980, 980 (2d Dept. 1947). The claims “may not be analyzed for the purpose of determining whether the [party] will succeed at trial.” Id. Under CPLR §6511(b), the notice of pendency must state the name of the parties, the object of the action and a description of the property affected.
If you have any legal questions or need help with a lis pendens or an easement, please contact Attorney Scott Lanin at (212) 764-7250 x 201 or use the contact form in the right sidebar.