Summary
In Keen v. Keen, 140 A.D.2d 311, 527 N.Y.S.2d 817 (2d Dept. 1988), shareholders brought a derivative action seeking to impose a constructive trust on real property allegedly purchased with funds fraudulently removed from the corporation.
Summary of this case from In re American Motor Club, Inc.Opinion
May 2, 1988
Appeal from the Supreme Court, Westchester County (Coppola, J.).
Ordered that the order entered September 26, 1986, is affirmed insofar as appealed from; and it is further,
Ordered that the order entered October 17, 1986, is affirmed; and it is further,
Ordered that the plaintiff is awarded two bills of costs.
On or about November 5, 1979, the plaintiff commenced the instant action by service of a summons with notice upon nearly all of the named defendants. Thereafter, the parties, through their attorneys, entered into various stipulations extending, sine die, the time periods within which both the complaint and an answer were to be served. Given these circumstances, the plaintiff has proffered a reasonable excuse for having not entered a default judgment within the statutory time period (see, CPLR 3215 [c]; Woodward v City of New York, 119 A.D.2d 749). Moreover, the plaintiff has demonstrated that her cause of action possesses merit (see, Grosso v Hauck, 99 A.D.2d 750; cf., Di Carlo v Bravo Tours, 129 A.D.2d 552).
The complaint, which seeks to impose a constructive trust on real property allegedly purchased with funds fraudulently removed from the defendant Investors Data Technology, Inc., and requests a reconveyance of real property to that corporation, clearly demands a judgment which would affect the title to, or the possession, use or enjoyment of real property (see, CPLR 6501). Therefore, it justifies the filing of a lis pendens by the plaintiff (see, 5303 Realty Corp. v O Y Equity Corp., 64 N.Y.2d 313, 320; Grossfeld v Beck, 42 A.D.2d 844). Brown, J.P., Weinstein, Spatt and Balletta, JJ., concur.