Rubinfeld v. Mappa

¶1—In a representative action for an accounting and to impress a trust on certain real property, the plaintiff appeals from an order of the Supreme Court, Kings County, entered March 6, 1964 (see 42 Mise 2d 464), which granted the defendants’ motion to vacate and to cancel of record a lis pendens theretofore filed against such property. Order affirmed, with $10 costs and disbursements. Ho opinion. Beldoek, P. J., Christ, Brennan and Rabin, JJ., concur; Benjamin, J., concurs in the result, with the following memorandum: The intervening rights of subsequent innocent purchasers for value renders moot the remedy afforded by a lis pendens. In my opinion, however, a lis pendens may properly be filed in a derivative stockholder’s action (such as the one at bar) if the relief sought comes within the provisions of the lis pendens statute, namely: if the action is one “in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property” (CPLR 6501). The mere fact that the action is representative or derivative should not be controlling.