The Second Department determined the purchaser of real property, Bolender, had demonstrated he was a bona fide purchaser who did not have notice of plaintiff’s prior purchase contract. Although plaintiff had filed a notice of pendency after the deed was transferred to Bolender but before the deed was recorded, the notice of pendency was not sufficient to put Bolender on notice:
To establish that he was a bona fide purchaser for value, Bolender had the burden of proving that he purchased the property for valuable consideration and that he did not purchase with ” knowledge of facts that would lead a reasonably prudent purchaser to make inquiry'” … . “When two or more prospective buyers contract for a certain property, pursuant to Real Property Law §§ 291 and 294, priority is given to the buyer whose conveyance or contract is first duly recorded”… .
Here, Bolender established, prima facie, his entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him. His submissions demonstrated that he was a bona fide purchaser for value, that he purchased the subject property for valuable consideration, without prior notice of the plaintiff’s alleged interest in the subject property, and without knowledge of facts that would lead a reasonably prudent purchaser to make such an inquiry. Bolender further demonstrated that the deed for the subject property was delivered to him on November 21, 2014, and recorded on December 27, 2014.
In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s assertion, the proof that it filed a notice of pendency … failed to raise a triable issue of fact. Although New York has a so-called “race-notice” statutory scheme… , having failed to avail itself of the protection of either Real Property Law §§ 291 or 294, the plaintiff may not successfully contend that its filing of a notice of pendency serves as a substitute for the recording of a conveyance or a contract … . 139 Lefferts, LLC v Melendez, 2017 NY Slip Op 08647, Second Dept 12-13-17
REAL PROPERTY LAW (BONA FIDE PURCHASER, SECOND PURCHASER OF REAL PROPERTY DEMONSTRATED HE WAS A BONA FIDE PURCHASER WITHOUT NOTICE OF THE PLAINTIFF’S PRIOR PURCHASE CONTRACT, PLAINTIFF’S FILING OF A NOTICE OF PENDENCY DID NOT SERVE AS A SUBSTITUTE FOR RECORDING OF THE CONTRACT (SECOND DEPT))/REAL ESTATE (BONA FIDE PURCHASER, SECOND PURCHASER OF REAL PROPERTY DEMONSTRATED HE WAS A BONA FIDE PURCHASER WITHOUT NOTICE OF THE PLAINTIFF’S PRIOR PURCHASE CONTRACT, PLAINTIFF’S FILING OF A NOTICE OF PENDENCY DID NOT SERVE AS A SUBSTITUTE FOR RECORDING OF THE CONTRACT (SECOND DEPT))/BONA FIDE PURCHASE (REAL ESTATE, SECOND PURCHASER OF REAL PROPERTY DEMONSTRATED HE WAS A BONA FIDE PURCHASER WITHOUT NOTICE OF THE PLAINTIFF’S PRIOR PURCHASE CONTRACT, PLAINTIFF’S FILING OF A NOTICE OF PENDENCY DID NOT SERVE AS A SUBSTITUTE FOR RECORDING OF THE CONTRACT (SECOND DEPT))