Opinion
February 27, 1964
David A. Goldstein for defendants. Solomon M. Kishner for plaintiff.
This is a motion to cancel a lis pendens filed by plaintiff in a derivative stockholders' action. The issue is whether the complaint states a cause of action affecting title to real property within the meaning of section 6501 of the Civil Practice Law and Rules.
The mere fact that the word "realty" or similar words are used in the complaint or that one of the prayers for relief seeks a transfer of title to realty, is not determinative unless supported by appropriate allegations. It is not the title of the action, nor the prayer for judgment, but the facts set out in the complaint which determine the kind and character of the action ( Weisinger v. Rae, 19 Misc.2d 341). The gravamen of the complaint herein is waste of corporate assets rather than title to property within the meaning of section 6501 of the Civil Practice Law and Rules ( Gross v. Price, 283 App. Div. 1107; Hyde v. Van Kleeck Co., 17 Misc.2d 375; Weisinger v. Rae, supra).
An examination of the record on appeal in the case of Gross v. Price ( supra), in which the cancellation of the lis pendens was affirmed by the Appellate Division, discloses a situation and a complaint very similar to the case at bar. The court held that the action was not the type of action contemplated in section 120 of the Civil Practice Act, now section 6501 of the Civil Practice Law and Rules. Motion granted.