Novastar Mtge., Inc. v LaForge

[*1] Novastar Mtge., Inc. v LaForge 2006 NY Slip Op 51306(U) [12 Misc 3d 1179(A)] Decided on July 5, 2006 Supreme Court, Greene County Lalor, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 5, 2006
Supreme Court, Greene County

Novastar Mortgage, Inc., Plaintiff,

against

Michael LaForge, Robin LaForge, Erin Capital Management, LLC, United States of America Acting through the IRS, Joan Redding, Defendants.



05-1040



Appearances: Steven J. Baum, P.C., P.O. Box 1291 Buffalo, New York 14240-1291, Elpiniki M. Bechakas, Esq. for plaintiff.

Daniel K. Lalor, J.

Plaintiff mortgagee, the purchaser at a foreclosure sale held herein on May 4, 2006, moves ex parte for an order pursuant to RPAPL § 221, otherwise known as a writ of assistance, ordering the sheriff to put plaintiff into possession of the foreclosed premises.

The judgment orders that "the purchaser or purchasers at such sale be let into possession on producing the Referee's Deed."

The affidavit in support of the application states that Mitzi Merlino "served Joan Redding, Robin LaForge, Michael LaForge and exhibited a copy of the Referee's Deed to them", but that defendants have refused to surrender possession of the premises.

In fact, the affidavits of service provided to the Court state that service of a notice to quit premises and referee's deed upon each of the above named defendants was actually accomplished by so-called "affix and mail" service, after several unsuccessful attempts to make personal delivery to defendants personally at the dwelling. Accordingly, it is not the case that the referee's deed was "produced" to any of the defendants, in the sense of having been "exhibited" to them (Colony Mortgage Bankers v Mercado, 192 Misc 2d 704 [2002]).

Section 221 of the Real Property Actions and Proceedings Law contains no requirement that the deed be personally shown to the person sought to be removed from the premises. The statute states only, "Where a judgment affecting the title to, or the possession, enjoyment or use of, real property allots to any person a distinct parcel of real property, or contains a direction for the sale of real property, or confirms such an allotment or sale, it also may direct the delivery of the possession of the property to the person entitled thereto. If a party . . . who is bound by the [*2]judgment, withholds possession from the person thus declared to be entitled thereto, the court, be order, in its discretion, besides punishing the disobedience as a contempt, may require the sheriff to put that person into possession." (RPAPL § 221.)

Case law indicates however that prior production of the deed is a prerequisite (e.g., Lincoln Savings Bank v Warren, 156 AD2d 510 [2d Dept 1989]). The reason for this requirement may arise partly out of confusion with the requirements attending an order of eviction following a summary proceeding (RPAPL § 713(5); see, 3-33 Bergman, New York Mortgage Foreclosures, Matthew Bender & Company, Inc. [2006], §33.02[2]), partly with the custom and practice of attorneys in including such language in judgments of foreclosure, and partly with the history of the common law writ.[FN1]

In any event, the statute contains no requirement of personal exhibition of the referee's deed, and to import one would "create a higher standard of service for the notice and the deed than is needed for the notice of petition and petition" in an eviction proceeding (Bergman, New York Mortgage Foreclosures, supra, §33.02[2]). Moreover, such a requirement would enable foreclosed occupants to frustrate the judgment of the Court by making themselves unavailable for personal service.

The statute does however contemplate a motion for the relief requested, and the general rule is that motions must be made on notice. An ex parte application should be attempted only when a statute or rule explicitly authorizes it (see Siegel, New York Practice, 4th Ed. §244 p.411) and there is no explicit authorization for ex parte application for an order pursuant to RPAPL §221. The present application made ex parte is accordingly denied. Plaintiff is granted leave to submit a renewed application on notice, and to effect service of the notice of motion together with a copy of the referee's deed upon each of the named defendants, by personal service, by substituted service pursuant to CPLR 308[2] or, if such service cannot be effected with due diligence, by service pursuant to CPLR 308[4].

This is the Decision and Order of the Court. All papers are returned to counsel for plaintiff, who is directed to enter this Decision and Order without notice.

Dated :July 5, 2006

Catskill, New York [*3]

_______________________________

Hon. Daniel K. Lalor Footnotes

Footnote 1:"The purpose and history of the writ of assistance are concisely stated in Connor v. Schaeffel (25 Abb. N. C. 344, 345) as follows: The writ of assistance, so far as foreclosures are concerned, is an old chancery writ, which exists independent of the statute (4 Wait's Pr. 196). It may be had to enforce any judgment or order awarding the possession of real property other than the common judgment in a direct action for land (2 Tillinghast & Shearman Pr. [2d ed.] 849, and see also Lynde v. O'Donnell, 12 Abb. Pr. 286; 21 How. Pr. 34; NY Life Insurance Co. v. Rand, 8 id. 35, 352). A writ of assistance is, in ordinary cases, the process for giving possession of land under an adjudication and will be granted upon the sale being confirmed, and proof that the purchaser has received a deed of conveyance from the master, which has been shown to the party in possession accompanied by a demand of possession, which has been refused (1 Barb. Ch. Pr. 531).'" (Kilpatrick v. Argyle Co., 199 A.D. 753.)