Summary
In Wagman v Smith, (161 AD2d 704 [2d Dept 1990]), the former owner in possession was not restored in an illegal lockout proceeding brought against the subsequent owner because the subsequent owner would have had a claim for possession against the former owner.
Summary of this case from Gonzalez v. NYCHA - Borinquen Plaza HousesOpinion
May 21, 1990
Appeal from the Supreme Court, Rockland County (Meehan, J.).
Ordered that the order is affirmed, with costs.
The petitioners formerly owned real property in Monsey, New York. After they defaulted on the mortgage, a judgment of foreclosure was entered against them and they were ordered to vacate the premises. The respondent then purchased the property at a foreclosure sale. The respondent changed the locks on the premises and the petitioner Aaron Wagman was arrested after he objected to the changing of the locks and his exclusion from the premises.
The Supreme Court properly dismissed the petition. The respondent could have been better advised to have employed the statutory remedy of a writ of assistance pursuant to RPAPL 221 rather than resorting to the common-law remedy of self-help. Nevertheless, there is no need to restore the petitioner to possession as the respondent would then be entitled to a writ of assistance and possession under RPAPL 221 (see Friends of Yelverton v. 163rd St. Improvement Council, 135 Misc.2d 275; Yates v. Kaplan, 75 Misc.2d 259). Thompson, J.P., Rubin, Rosenblatt and Miller, JJ., concur.