Using a Lis Pendens to Enforce a New York Real Estate Purchase Contract Through Specific Performance

Reviewed by Albert Goodwin, Esq., a New York-licensed real estate litigation attorney. Last updated: June 2024. This article is general information, not legal advice, and does not create an attorney-client relationship.

When a New York seller refuses to close on a signed contract of sale, the buyer's most powerful tool is not a demand letter — it is a notice of pendency (commonly called a lis pendens) filed alongside a lawsuit for specific performance. Because every parcel of real property is treated as unique, New York courts routinely order a defaulting seller to actually convey the property rather than simply pay damages. A properly filed notice of pendency locks the property in place while that suit proceeds, preventing the seller from selling, refinancing, or transferring to anyone else. This page explains how to use that leverage to force a closing, when the law permits it, and how a seller can fight back when the buyer cannot actually perform.

This page focuses narrowly on the lis pendens as a tool to enforce and close a purchase contract. If your issue is instead removing a wrongfully filed lis pendens, the specific-performance remedy generally, a seller or buyer failure to close, or an earnest-money deposit dispute, see those dedicated pages.

The Legal Basis: CPLR 6501 and Specific Performance

A notice of pendency in New York is governed by CPLR Article 65 (Sections 6501 through 6516). Under CPLR 6501, a notice may be filed "in any action ... in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property." A buyer's suit for specific performance of a real estate contract is the paradigm case — the whole point of the action is to obtain the property itself.

Specific performance is an equitable remedy. New York courts grant it because money damages are considered inadequate for real property; each parcel is unique as a matter of law. See EMF Gen. Contr. Corp. v. Bisbee, 6 A.D.3d 45 (1st Dep't 2004) (discussing the ready, willing, and able standard), and Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409 (2001) (specific performance available to enforce a real estate agreement). To prevail, the buyer must prove there was a valid contract, that the buyer was and remains ready, willing, and able to perform, and that the seller failed to perform.

Why the Notice of Pendency Creates Leverage

A notice of pendency does not adjudicate anything. It does not prove the buyer is entitled to the property. But as a practical matter it ties up the title. Once the notice is indexed against the property in the county clerk's office, every prospective purchaser and lender takes subject to the outcome of the lawsuit. In practice:

• No title insurer will issue a clean policy while the notice is of record;
• No prudent third-party buyer will close on a property burdened by pending litigation;
• No lender will lend against a clouded title;
• The seller cannot refinance to extract equity or transfer the property free of the claim.

That practical lock gives a buyer with a legitimate specific-performance claim a settlement asset far more valuable than the bare merits. A seller who needs to sell may agree to close on the original terms, adjust price, or extend a deadline to clear the notice.

Step-by-Step: Filing and Serving the Notice in New York

1. Commence the action. The notice of pendency can be filed only in connection with a pending lawsuit. You must have a summons and complaint (or summons with notice) demanding specific performance or another judgment affecting the property.
2. Obtain an index number. The action must be assigned an index number from the county clerk in the county where the property sits before the notice can be indexed.
3. File the notice with the county clerk. Under CPLR 6511, the notice is filed in the office of the clerk of the county where the property is located, and it must contain the names of the parties, the object of the action, and a description of the property affected. In New York City, that means the clerk of the borough county — New York (Manhattan), Kings (Brooklyn), Queens, Bronx, or Richmond (Staten Island).
4. Serve the summons within 30 days. CPLR 6512 requires that the summons be served on the defendant within thirty days after the notice is filed; otherwise the notice is void. This is a common defect that leads to cancellation.
5. Record and monitor. The notice binds successors and purchasers from the moment of filing and indexing. It is effective for three years and may be extended by court order for additional three-year periods on motion made before expiration (CPLR 6513).

When a Buyer May — and May Not — File

The right to file is not automatic. The action must genuinely affect title to real property, not be a disguised money claim. A dispute that is only about money — for example, recovering a deposit after the buyer's mortgage contingency is validly exercised — does not support a notice of pendency, because the judgment demanded is money, not the property. Buyers who dress up a deposit-return dispute as a specific-performance claim to gain leverage invite cancellation, costs, and exposure to a slander of title claim. See 39 College Point Corp. v. Transpac Capital Corp., 27 A.D.3d 454 (2d Dep't 2006).

If you cannot qualify for a mortgage or simply want your deposit back, the correct path is a suit for the deposit and a money judgment — not a notice of pendency. For that scenario, see our earnest-money deposit dispute page.

Defending Against the Notice: Cancellation Under CPLR 6514

Sellers are not defenseless. CPLR 6514 provides two routes to cancel:

• Mandatory cancellation (CPLR 6514(a)): the court must cancel where the summons was not served within the time limited, the action has been settled or discontinued, or a final judgment was entered against the party who filed.
• Discretionary cancellation (CPLR 6514(b)): the court may cancel where the action "was not commenced or prosecuted in good faith."

Critically, courts also apply an "exacting standard" to the notice itself: on a motion to cancel, the court reviews the pleadings to determine whether the complaint truly seeks a judgment affecting the property. If it does not, the notice is cancelled regardless of good faith. See 5303 Realty Corp. v. O & Y Equity Corp., 64 N.Y.2d 313 (1984). Under CPLR 6514(c), the court may direct the party who filed an improper notice to pay the moving party's costs and reasonable expenses, including attorney's fees.

Typical Motion-to-Cancel Timeline

• Weeks 0–2: Notice filed and indexed; seller learns title is clouded (often when a resale or refinance stalls).
• Weeks 2–4: Seller's counsel reviews the complaint, service, and the buyer's ability to perform; drafts a motion to cancel with supporting affidavits.
• Weeks 4–8: Motion filed and served; opposition and reply papers exchanged on the court's briefing schedule.
• Weeks 8–16+: Oral argument and decision. Timing varies significantly by county and the court's calendar; a mandatory-cancellation ground (e.g., defective service) may resolve faster than a fact-intensive good-faith challenge.

Leverage Comparison: File the Lis Pendens vs. Sue for Damages Only

The Seller's Counter-Strategy

The most effective seller response is often to test whether the buyer can actually close. Because specific performance requires the buyer to be ready, willing, and able, targeted discovery — mortgage commitments, bank statements, proof of funds, employment verification — can expose a buyer who filed only for leverage and has no capacity to perform. A buyer who cannot show the ability to complete the purchase is exposed to discretionary cancellation and, potentially, sanctions.

Negotiated Resolutions

Most contract disputes that reach the notice-of-pendency stage settle rather than proceed to trial. Common compromises include extending the closing date for a defined period, a modest price adjustment, returning the deposit with an added payment for expenses, reallocating closing costs, or restructuring around the underlying problem (a financing delay, title defect, or condition issue). A sound settlement agreement releases all claims, provides for cancellation of the notice of pendency, and includes a liquidated-damages or default provision to enforce performance.

Timing and Statute of Limitations

Specific-performance actions in New York are governed by the six-year limitations period of CPLR 213, running from the date of breach. But leverage is time-sensitive: the earlier the notice is filed, the more effectively it prevents the seller from conveying to a third party. Waiting invites the seller to close with someone else and complicates the buyer's remedy.

Costs and Attorney's Fees

Many New York contracts of sale contain a prevailing-party attorney-fee provision, so fee exposure runs in both directions and belongs in every settlement calculation. Separately, CPLR 6514(c) authorizes a fee award against a party who files an improper notice of pendency. Both realities reward filing only where a genuine specific-performance claim exists.

Frequently Asked Questions

Can I file a lis pendens on a co-op apartment?

Generally no. A co-op interest is personal property (shares plus a proprietary lease), not real property, so it typically falls outside CPLR 6501. See our dedicated page on whether you can file a lis pendens on a co-op. A condominium unit, by contrast, is real property and can support a notice.

How long does a notice of pendency last?

Three years from filing under CPLR 6513, extendable by court order for successive three-year periods if the motion is made before the notice expires.

What happens if I file a lis pendens on a claim that is really just about money?

The notice can be cancelled under CPLR 6514, you may be ordered to pay the other side's costs and attorney's fees, and you risk a separate slander-of-title claim.

Can the seller sell the property while my notice is on file?

The seller can technically transfer, but any buyer or lender takes subject to your lawsuit, which as a practical matter blocks a normal sale or refinance until the case resolves.

Do I have to serve the seller after filing?

Yes. Under CPLR 6512, the summons must be served within 30 days of filing the notice, or the notice is void.

Speak With a New York Real Estate Litigator

Albert Goodwin, Esq. is a New York-licensed attorney who handles closing disputes, specific-performance actions, and notice-of-pendency litigation across all five boroughs and the surrounding counties. He can be reached at 212-233-1233 or at [email protected].