        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1033
CA 12-00537
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


BENJAMIN L. JOLLEY, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

AGOSTINHA R. LANDO, DEFENDANT-APPELLANT.


WILLIAMSON, CLUNE & STEVENS, ITHACA (JOHN HANRAHAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BENJAMIN L. JOLLEY, PLAINTIFF-RESPONDENT PRO SE.


     Appeal from an order of the Supreme Court, Steuben County (Joseph
W. Latham, A.J.), entered October 11, 2011. The order, insofar as
appealed from, denied defendant’s motion to strike and cancel the
notice of pendency.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs and defendant’s motion
is granted.

     Memorandum: Plaintiff husband commenced this action seeking
equitable distribution of the parties’ marital assets, which allegedly
include 18 parcels of real property. In addition to filing a summons
and complaint, plaintiff filed a notice of pendency as to the real
property (see CPLR 6501). We agree with defendant wife that Supreme
Court erred in denying her motion to cancel the notice of pendency.
“A notice of pendency may be filed in any action in a court of the
state or of the United States in which the judgment demanded would
affect the title to, or the possession, use or enjoyment of, real
property” (id.). In determining the merits of a motion to cancel a
notice of pendency, a court is limited to examining the face of the
pleadings (see 5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313,
320-321). “A claim that real property is a marital asset subject to
distribution does not, by itself, establish grounds for a [notice of
pendency]” (Sehgal v Sehgal, 220 AD2d 201, 201; see Fakiris v Fakiris,
177 AD2d 540, 543), inasmuch as a claim for equitable distribution
will not necessarily affect the title to, or possession, use, or
enjoyment of, the subject real property (see Arteaga v Martinez, 79
AD3d 951, 952; Fakiris, 177 AD2d at 543; Gross v Gross, 114 AD2d 1002,
1003). The court erred in relying on, inter alia, Caruso, Caruso &
Branda, P.C. v Hirsch (41 AD3d 407, 409) because the complaint in the
underlying divorce action in that case asserted causes of action for
fraudulent conveyance and constructive trust in addition to equitable
distribution. Here, the complaint seeks only equitable distribution.
                                 -2-                         1033
                                                        CA 12-00537

     We reject plaintiff’s contention that the relief demanded in the
complaint “would, obviously, affect [defendant’s] title to and/or her
possession, use or enjoyment of the parcels identified in” the notice
of pendency. At this juncture of the litigation it is unclear whether
the court, in the event that it rules in favor of plaintiff, will
order defendant to convey the properties to plaintiff or will instead
order defendant to pay a money judgment to plaintiff. It thus cannot
be said with certainty that defendant will be required to sell or
mortgage the subject properties.




Entered:   October 5, 2012                     Frances E. Cafarell
                                               Clerk of the Court
