Opinion
2002-02828
Argued December 10, 2002.
December 30, 2002.
In a proceeding pursuant to CPLR article 78 to review a determination of the Sheriff of the City of New York refusing to comply with a foreclosure execution, the petitioner appeals from a judgment of the Supreme Court, Richmond County (Sangiorgio, J.), dated March 15, 2002, which denied the petition and dismissed the proceeding.
Hall Hall, LLP, Staten Island, N.Y. (John G. Hall of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Kristin M. Helmers of counsel), for respondent.
Before: DAVID S. RITTER, J.P., DANIEL F. LUCIANO, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
Due process requires that one be given notice and an opportunity to be heard before one's interest in property may be adversely affected by judicial process. Enforcement of an execution against one who was not joined as a party to the proceeding would violate due process (see Nationwide Assocs. v. Brunne, 216 A.D.2d 547; Gibbs v. Kinsey, 170 A.D.2d 1049; County Fed. Sav. Loan Assn. v. First Pennsylvania Realty Corp., 29 A.D.2d 675, affd 23 N.Y.2d 680). Further, it is well settled that "[t]he interest of an occupant of the mortgaged premises who is not served remains unaffected by the foreclosure" (Nationwide Assocs. v. Brunne, supra; Green Point Sav. Bank v. Defour, 162 Misc.2d 476). We agree with the Supreme Court that the occupant of the foreclosed property, who was not joined as a party to the foreclosure action, was not bound by the execution or the judgment of foreclosure. Therefore, the Supreme Court correctly denied the petition and dismissed the proceeding.
The appellant's remaining contentions are without merit.
RITTER, J.P., LUCIANO, COZIER and RIVERA, JJ., concur.