First Cent. Sav. Bank v Yglesia

[*1] First Cent. Sav. Bank v Yglesia 2012 NY Slip Op 51969(U) Decided on October 11, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 11, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MOLIA and LaCAVA, JJ
2010-2618 S C.

First Central Savings Bank, Respondent,

against

Jose Yglesia, Appellant, -and- MAGDELENA YGLESIA, JOSE NICHOLAS YNOA NUNEZ and "JANE DOE", Occupants.

Appeal from a final judgment of the District Court of Suffolk County, Fifth District (Dennis M. Cohen, J.), entered September 22, 2010. The final judgment, insofar as appealed from, after a nonjury trial, awarded possession to petitioner as against occupant Jose Yglesia in a summary proceeding brought pursuant to RPAPL 713 (5).

ORDERED that the final judgment, insofar as appealed from, is reversed, without costs, and final judgment is directed to be entered dismissing so much of the petition as is against occupant Jose Yglesia.

In this summary proceeding by a purchaser in foreclosure (RPAPL 713 [5]), Jose Yglesia (occupant) appeals from so much of a final judgment as awarded possession to petitioner as against him. The uncontroverted evidence at the nonjury trial established that the subject house was the residence of three families living independently of each other, with each unit having its own entrance, kitchen and bathroom, and with each unit being separately possessed. In these circumstances, petitioner was required to maintain a separate summary proceeding to recover possession of each of the separate units and could not maintain a single proceeding to recover the entire house (see City of New York v Mortel, 161 Misc 2d 681 [App Term, 2d & 11th Jud Dists 1994]; see also Sherhan v Numyal Food, 3 Misc 3d 129[A], 2004 NY Slip Op 50374[U] [App Term, 2d & 11th Jud Dists 2004]). Accordingly, the final judgment, insofar as appealed from, is reversed and final judgment is directed to be entered dismissing so much of the petition as is against occupant.

Iannacci, J.P., Molia and LaCava, JJ., concur. [*2]
Decision Date: October 11, 2012