Notice of Pendency
(Foreclosure of Real Property) (NY)

This template is a form of a notice of pendency for use with the foreclosure of real property in New York and contains practical guidance and drafting notes. A notice of pendency (or lis pendens) is a vital mechanical and substantive aspect of a mortgage foreclosure action. A lender foreclosing on a property should file a lis pendens in the clerk's office in the county where the property is located. A lis pendens is a written notice that a lawsuit has been filed that may affect the title to or the possession, use, or enjoyment of real property. N.Y. C.P.L.R. 6501. This operates to put the world on notice that there is a claim affecting title of the property. More importantly, filing of a lis pendens protects the foreclosing party, as it binds all subsequent encumbrancers or purchasers of the property as if they had been made parties to the foreclosure action. Therefore, after the filing of a lis pendens, any subsequent interests will be extinguished by the foreclosure sale just as if they had been named and served in the foreclosure, even if they are unknown to plaintiff and not a party to the foreclosure action. Filing a lis pendens at the commencement of the foreclosure action is best practice; however, a lis pendens need not be filed at that time, as long as it is filed at least 20 days prior to a judgment of foreclosure. N.Y. Real Prop. Acts. Law § 1331; Slutsky v. Blooming Grove Inn, Inc., 542 N.Y.S.2d 721 (1st Dept 1989). The duration of a lis pendens is three years. N.Y. C.P.L.R. 6513. If a foreclosure action remains pending for more than three years, a motion must be made to extend the lis pendens, and the order extending the lis pendens must be made and recorded before the expiration of the prior lis pendens. For more information about commercial foreclosure in New York, see Commercial Mortgage Foreclosure (NY) and Foreclosure Resource Kit (NY). See also Bergman on New York Mortgage Foreclosures §§ 15.01 through 15.09.