(dissenting). The majority proceeds in part upon the premise that "notice” could have some legal bearing upon the status of the State Bank of Albany (Bank) as a judgment creditor (incumbrancer) whose lien arose after the lis pendens was filed. However, a judgment creditor is not an incumbrancer whose lien can be affected by any notice, actual or constructive, of other persons’ rights. The lien of a judgment creditor arises as an operation of law upon proper filing and only issues as to matters of priority regarding the property subject to the lien remain.
The case of Carvel-Dari Freeze Stores v Lukon (219 NYS2d 716, 720, mod 18 AD2d 700, mot for lv to app dsmd 12 NY2d 1067) is inapplicable to the present case since it considered section 121-a of the former Civil Practice Act which appeared upon its face to be limited only to specifying that the notice of pendency would not be effective "as notice” after three years. The Legislative Studies and Reports (McKinney’s Cons Laws of NY, Book 7B, CPLR 6513, pp 255-256) indicate that the revision as enacted in the CPLR was intended not just to eliminate the effectiveness of the lis pendens as "notice”, and it is stated that "[c]learly, a stale notice of pendency should be *410wholly ineffective for any purpose whatever.” (Emphasis added.)
We agree that those persons who acquire interests in real property that are legally subject to bona ñdes or "notice” in regard to such interests would receive notice when they acquire their interest during the three-year period regardless of CPLR 6513, but that principle has no effect on the instant incumbrance.
The order appealed from should be affirmed.
Sweeney and Kane, JJ., concur with Mahoney, P. J.; Staley, Jr., and Herlihy, JJ., dissent and vote to affirm in an opinion by Herlihy, J.
Order reversed, on the law, with costs; plaintiffs’ motion for summary judgment granted and defendants’ cross motion for summary judgment denied.