This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

COUNTY CLERK -- Fees (for notice of pendency affecting more than one parcel)
ACTIONS AND PROCEEDINGS -- Notice of Pendency (filing fee when affecting more than one parcel)

CIVIL PRACTICE LAW AND RULES, §§8018, 8021: A county clerk may not charge additional fees for filing a notice of pendency if the notice affects more than one parcel of real property.

You ask if a county clerk may charge additional fees for the filing of a notice of pendency if the notice affects more than one parcel of real property.

A notice of pendency may be filed in any action in a court of this State or of the United States in which the judgment demanded in the action would affect the title to, or the possession, use or enjoyment of, real property (Civil Practice Law & Rules [CPLR], §6501; 5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313, 486 NYS2d 877, 476 NE2d 276). When filed, the notice of pendency serves as constructive notice of the litigation and avoids the hardship of the common law rule under which a grantee of real property was deemed to be in privity with the grantor and was thus subject to the judgment of an action pending at the time title was transferred (see McLoughlin, Practice Commentaries, McKinney's Consolidated Laws of New York, Book 7B, CPLR, §6501, p 438). The notice is filed with the clerk of any county where the property affected is situated (CPLR, §6511[a]). If the clerk maintains a block index it is indexed against the block. A county clerk who does not maintain a block index, indexes the notice of pendency against the names of each plaintiff and each defendant not designated as wholly fictitious (CPLR, §6511[c]).

With the exception of the additional fees that may be charged by the City Register of the City of New York and the County Clerk of the County of Richmond pursuant to the Administrative Code of the City of New York, and the additional block fees provided for in the Nassau County administrative code (see, CPLR, §8019[a]), the fees to be charged by a county clerk for the filing of a notice of pendency are limited to those set forth in CPLR, §§8021. As is explained below, section 8021 governs the imposition of such fees if the county clerk has not assigned an index number to the action to which the notice of pendency relates. If the clerk has assigned an index number then the notice of pendency is filed without payment of additional fee pursuant to CPLR, §8018(d).

CPLR, §8021 provides that a county clerk is entitled to the fees specified in that section whenever the clerk renders specified services other than in his capacity as clerk of the supreme court or a county court and other than when he renders such services in an action pending in a court of which he is clerk. Subject to these limitations, subdivision (a)(10) of CPLR, §8021 provides that a county clerk is entitled to a fee with respect to a notice of pendency, as follows:

For filing or recording a notice of pendency of action or a notice of attachment against real property, or an amended notice of pendency of action or an amended notice of action against real property, fifteen dollars, but no fee shall be charged for filing or recording a notice or order continuing or cancelling same.

As noted, with respect to a notice of pendency offered for filing in a matter where an index number has been assigned, subdivision d of CPLR, §8018 provides that a county clerk shall charge no fee in addition to the fee charged upon assignment of the index number. In addition, subdivision (d)(6) of CPLR, §8018 specifically provides that no additional fee shall be charged "for filing a notice or order continuing or cancelling a notice of pendency of action ..."

The statutory provisions set forth above are clear and unambiguous. CPLR, §§8021(a)(10) and 8018 make no reference to the number of persons designated as plaintiffs or defendants in an action which underlies the notice, nor is there any reference to the number of parcels of real property that may be affected. We conclude, accordingly, that with the exception of the additional fees allowed by CPLR, §8019(a) which may be charged by the City Register of the City of New York and the County Clerks of the Counties of Richmond and Nassau, a county clerk may charge only the fees specified for each notice of pendency filed, and that these fees are not in any manner dependant upon the number of entries that may be required to be made in the clerk's records. It is our opinion, therefore, that, subject only to the exceptions noted, the clerk's fee remains the same whether the notice of pendency affects multiple parcels of real property or only a single parcel.

February 17, 1989
Jack M. Weinstein, Esq., Counsel
County of Queens