Summary
In Tri-Land Props. v 115 W. 28th St. Corp., (267 AD2d 142 [1st Dept 1999]), the First Department stated: The purchaser at the foreclosure sale was properly granted a writ of assistance under RPAPL 221, where defendants were parties to the underlying foreclosure action, had been served with a copy of the judgment of foreclosure and sale, and were duly apprised of the sale of the property.
Summary of this case from T11 Funding v. LewisOpinion
December 21, 1999
Order, Supreme Court, New York County (Harold Tompkins, J.), entered November 10, 1998, which, inter alia, granted foreclosure purchaser's motion for a writ of assistance evicting defendant Dube from the subject premises, unanimously affirmed, with costs.
John B. Grant, Jr. for Plaintiff-Respondent.
Richard S. Missan and Jeffrey E. Glen for Defendants-Appellants.
NARDELLI, J.P., WILLIAMS, MAZZARELLI, WALLACH, LERNER, JJ.
The purchaser at the foreclosure sale was properly granted a writ of assistance under Real Property Law § 221, where defendants were parties to the underlying foreclosure action, had been served with a copy of the judgment of foreclosure and sale, and were duly apprised of the sale of the property. We note that while the purchaser did, in fact, serve defendants with a notice to vacate in conformity with RPAPL § 735 Acts.(1), such service was not a prerequisite to the motion for a writ of assistance (see,Lincoln First Bank v. Polishuk, 86 A.D.2d 652;Matter of Foreclosure of Tax Liens by City of Buffalo, 142 A.D.2d 1004). The IAS court properly refused to stay defendant Dube's eviction pending resolution of her application for Loft Law coverage (made after the judgment of foreclosure had already been affirmed [ 238 A.D.2d 206, lv denied 90 N.Y.2d 934] and without notice to the mortgagee and receiver), where the record established that she is an owner-occupant, not a "residential occupant", of the premises, and that her Loft Law application is therefore patently without merit (see, Friesch-Groningsche Hypotheekbank Realty Credit Corp. v. Slabakis, 215 A.D.2d 154; First Edition Composite v. Wilkson, 177 A.D.2d 297, 298; Steltzer v. Eason, 175 A.D.2d 158). We have considered defendants' remaining arguments, including that the foreclosure should be vacated, and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.