Diaz v. Paterson

United States Court of Appeals for the Second Circuit · 2008 · Civil Procedure

547 F.3d 88 (2008)

Updated July 29, 2026

Civil ProcedureDue ProcessEqual ProtectionLis PendensPrejudgment Remediesnotice of pendencyArticle 65as-applied challenge

Facts

New York Article 65 permits a plaintiff in an action affecting title to, possession, use, or enjoyment of real property to file a notice of pendency without prior notice or hearing, with service of summons required within 30 days and post-filing procedures for cancellation or substitution of a bond. Diamond was subjected to a lis pendens in a fraudulent conveyance action tied to a promissory note involving her husband's debt; Diaz was subjected to a lis pendens in a mortgage foreclosure action; and Betesh was subjected to a lis pendens in an action contesting the validity of a transfer of his mother's house to him. Each plaintiff alleged that the filing impaired marketability or financing of the property before an opportunity to contest the notice. Diamond also alleged that Article 65 denied equal protection by disadvantaging spouse-creditors relative to non-spousal creditors.

Issue

Whether New York's lis pendens statute violates the Fourteenth Amendment Due Process Clause, on its face or as applied to these plaintiffs, because it allows filing without prior notice or hearing. Also, whether the statute violates equal protection by discriminating against married persons who are creditors of their spouses.

Rule

Under Connecticut v. Doehr, due process challenges to prejudgment remedies are evaluated by balancing: (1) the private interest affected by the prejudgment measure, (2) the risk of erroneous deprivation under existing procedures and the probable value of additional safeguards, and (3) the interest of the claimant and the state. As applied here, Article 65 satisfies due process where it is narrowly limited to actions asserting pre-existing interests affecting real property and provides post-deprivation notice and hearing. A facially neutral statute violates equal protection only if it is applied in an intentionally discriminatory manner or has an adverse effect and was motivated by discriminatory animus.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Albany, Nora Feld files suit claiming that a townhouse was fraudulently transferred to her brother's business partner to evade repayment of a written $140,000 note secured by an agreement to satisfy the debt from sale proceeds of that townhouse. On the same day, she files a notice of pendency under a state statute limited to actions affecting title to, possession, use, or enjoyment of real property, and the owner receives service 20 days later.

If the owner argues that due process required notice and a hearing before the notice of pendency could be filed, which result is most consistent with the governing rule?

Explanation. Under the majority's application of the Doehr framework, a notice of pendency may satisfy due process without pre-filing notice or hearing when it is narrowly limited to actions asserting pre-existing interests affecting the property itself. The private burden on the owner counts, but is less severe than attachment because the notice creates no new property right and does not bar use or transfer. The risk of error is relatively low where the underlying claim is readily quantifiable and susceptible to documentary proof, and post-deprivation notice and a hearing are available.