The Second Department, in a decision too complex to fairly summarize here, determined a party’s (Myrtle’s) failure to execute a recorded memorandum referencing a purchase and sale agreement and assignment resulted in the failure to give priority to a claim to the property by a another party to the agreement (All Year):
Real Property Law § 294(2) provides, inter alia, “[i]n lieu of the recording of an executory contract, there may be recorded a memorandum thereof, executed by the parties.” Here, in lieu of recording the purchase and sale agreement and assignment thereof, All Year and Cumberland executed and recorded a memorandum referencing the purchase and sale agreement and the assignment. However, Myrtle, which was a party to both the purchase and sale agreement and the assignment, did not execute the memorandum. As Myrtle did not execute the memorandum, it was improperly recorded in lieu of the purchase and sale agreement and assignment, and its recording did not serve to give All Year’s claim to the property priority over Brookland’s claim. Vanderbilt Brookland, LLC v Vanderbilt Myrtle, Inc., 2017 NY Slip Op 01402, 2nd Dept 2-22-17
REAL PROPERTY LAW (A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY)/RECORDING (REAL PROPERTY LAW, PURCHASE AND SALE AGREEMENT, A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY)/PRIORTY (REAL PROPERTY, RECORDING, A PARTY’S FAILURE TO EXECUTE A MEMORANDUM OF A PURCHASE AND SALE AGREEMENT RENDERED THE MEMORANDUM IMPROPERLY RECORDED AND FAILED TO GIVE PRIORITY TO A CLAIM TO THE PROPERTY)