Johnson v. Klimecki , 5 Misc. 2d 604 ( 1957 )

James S. Brown, J.

Motion to vacate lis pendens upon the ground that one of the three defendants was not served in accordance with section 120 of the Civil Practice Act is denied. Section 120 of the Civil Practice Act does not require service upon all the defendants.

“ Section 120 of the Civil Practice Act provides that in an action ‘ to recover a judgment affecting the title to, or the possession, use, or enjoyment of real property, if the complaint is verified, the plaintiff, when he files his complaint 5 * * may file in the clerk’s office of each county where the property is situated a notice of the pendency of the action * * *. Such a notice may be filed with the complaint before the service of the summons; but, in that case, personal or substituted service of the summons must be made upon a defendant, within sixty days after the filing, or else, before the expiration of the same time, publication of the summons must be commenced, or service thereof must be made without the state, as prescribed by law.’ (Emphasis supplied.) That section is to be read in connection with section 218 of the Civil Practice Act, which provides that a civil action ‘ is commenced by the service of a summons, which is a mandate of the court. ’ Thus, one may file a lis pendens before the service of the summons, but one must commence the action by the service of the summons upon one of the defendants within sixty days in the manner prescribed in section 120 of the Civil Practice Act.” (Israelson v. Bradley, 308 N. Y. 511, 514.)

Settle order on notice.