In this action to foreclose on a condominium common charge lien, plaintiff moves for default judgment, the appointment of a referee to ascertain and compute sums due, and to amend the caption. Defendant Daimean Subero opposes the motion and cross-moves for cancellation of the notice of pendency pursuant to CPLR 6514 and for dismissal of the complaint pursuant to CPLR 3211. For the reasons discussed herein, the cross-motion is GRANTED, the notice of pendency is cancelled, and the complaint is dismissed. Plaintiff's motion is DENIED.

The cancellation of the notice of pendency is mandatory here, pursuant to CPLR 6514(a) and 6512, because service of the summons was not completed within 30 days of the filing of the notice of pendency (Knopf v Sanford, 132 AD3d 416, 417 [1st Dept 2015]; Serfaty v EastWest Properties LLC, 258 AD2d 356 [1st Dept 1999]). Moreover, because the notice of pendency is "clearly an indispensable requirement to the continuation of a lien and the lack of any notice of pendency is a fatal omission" (Kellett's Well Boring v City of New York, 292 AD2d 179, 181 [1st Dept 2002]), the Court grants dismissal of the complaint, which asserts a single claim of lien foreclosure, for failure to state a cause of action (CPLR 3211[a][7]).

Even if the notice of pendency were not cancelled and the complaint not dismissed, plaintiff would not be entitled to a default judgment, since Subero's answer with counterclaims was timely. CPLR 308(4) requires that proof of substituted service "shall be filed with the clerk of the court designated in the summons within twenty days of either [the] affixing or mailing, whichever is effected later; service shall be complete ten days after such filing" (emphasis added). Here, plaintiff filed its affidavit of service of the summons and complaint with the court on June 2, 2023, meaning service was complete ten days later, on June 12, 2023, and defendant would then have thirty days to answer (CPLR 320[a]). Notwithstanding, plaintiff filed this motion for default judgment prematurely on June 14, 2023; defendant filed his timely answer on June 23, 2023; and plaintiff improperly rejected the answer on June 26, 2023. Accordingly, that part of plaintiff's motion seeking a default judgment would have failed on this alternative ground (see Watson v City of New York, 157 AD3d 510, 512 [1st Dept 2018]).

Based upon all the foregoing, it is hereby

ORDERED that plaintiff's motion is DENIED; and it is further

ORDERED that defendant's cross-motion is GRANTED, the complaint is dismissed, and the notice of pendency dated April 18, 2023, filed by plaintiff in this action against the premises known as 214 Neptune Lane, Bronx, NY 10473, Block 3432, Lot 1096, is hereby vacated and cancelled and the Clerk of the County of Bronx is directed to cancel said notice of pendency of record; and it is further

ORDERED that defendant Subero's counterclaims are severed and continued; and it is further

ORDERED that the parties shall appear for a conference with the Court on April 25, 2024, at 9:30 a.m., in Room 401, 851 Grand Concourse, Bronx, New York.

This constitutes the decision and order of the Court.