N.Y. Civil Practice Law & Rules § 1347: Motion for cancellation of notice of pendency

§ 1347. Motion for cancellation of notice of pendency. 1. Mandatory

cancellation. The court, upon motion of any person aggrieved and upon

such notice as it may require, shall direct any county clerk to cancel a

notice of pendency, if service of a summons has not been completed

within the time limited by section one thousand three hundred forty-five

of this article; or if the action has been settled, discontinued or

abated; or if the time to appeal from a final judgment against the

claiming authority has expired.

2. Discretionary cancellation. The court, upon a motion of any person

aggrieved and upon such notice as it may require, may direct any county

clerk to cancel a notice of pendency, if the claiming authority has not

commenced or prosecuted the action in good faith.

3. Costs and expenses. The court, in an order canceling a notice of

pendency under this section, may direct the claiming authority to pay

any costs and expenses occasioned by the filing and cancellation, in

addition to any costs of the action. In order to establish the claiming

authority's liability for such costs and expenses, the person seeking

such costs and expenses must prove by a preponderance of the evidence

that, in causing the notice to pendency to be filed, the claiming

authority acted without reasonable cause and not in good faith.

4. Cancellation by stipulation. At any time prior to entry of

judgment, a notice of pendency shall be cancelled by the county clerk

without an order, on the filing with him or her of:

(a) An affidavit by the claiming authority showing which defendants

have been served with process, which defendants are in default in

appearing or answering, and which defendants have appeared or answered

and by whom; and

(b) A stipulation consenting to the cancellation, signed by the

claiming authority and by the attorneys for all the defendants who have

appeared or answered including those who have waived all notices, and

executed and acknowledged, in the form required to entitle a deed to be

recorded, by the defendants who have been served with process and have

not appeared but whose time to do so has not expired, and by any

defendants who have appeared in person.

5. Cancellation by a claiming authority. At any time prior to the

entry of a judgment a notice of pendency of action shall be cancelled by

the county clerk without an order on the filing with him or her of an

affidavit by the claiming authority showing that there have been no

appearances and that the time to appear has expired for all parties.