Halsey Homes Corp. v Prince-Bowden

[*1] Halsey Homes Corp. v Prince-Bowden 2020 NY Slip Op 51302(U) Decided on October 30, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., BERNICE D. SIEGAL, WAVNY TOUSSAINT, JJ
2019-919 K C

Halsey Homes Corp., Respondent,

against

Janice Prince-Bowden, Appellant, et al., Undertenants.

Janice Prince-Bowden, appellant pro se. Zelentiz, Shapiro & D'Agostino (Bradley M. Zelenitz of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Hannah Cohen, J.), dated June 7, 2019. The order granted petitioner's motion to compel the marshal to re-execute a warrant of eviction in a summary proceeding commenced pursuant to RPAPL 713 (5).

ORDERED that the order is reversed, without costs, and petitioner's motion to compel the marshal to re-execute the warrant of eviction is denied.

This summary proceeding commenced pursuant to RPAPL 713 (5) was settled pursuant to a stipulation, and execution of the warrant of eviction was stayed through October 31, 2018. Occupant then successfully moved several times to stay the execution of the warrant, but was evicted from the premises on April 4, 2019. On that same day, but after occupant was evicted, petitioner was informed that the Appellate Division, Second Department, had awarded occupant an interim stay of the eviction, pending the determination of a motion in a Supreme Court proceeding relating to the prior sale of the subject premises. Petitioner immediately allowed occupant to regain possession of the premises. The Appellate Division, Second Department, denied occupant's motion on May 7, 2019, and, on papers dated May 28, 2019, petitioner moved in this proceeding to compel the marshal to re-execute the warrant of eviction. By order dated [*2]June 7, 2019, the Civil Court granted petitioner's motion, finding that, due to the stay ordered by the Appellate Division, Second Department, the proceeding was still pending and the Civil Court retained jurisdiction. Due to the compelling circumstances of the proceeding, the Civil Court directed the marshal to re-execute the warrant of eviction.

The eviction here was legally executed, as it was completed before the marshal was served with the Appellate Division's stay order (see Chelsea Marina v Scoralick, 94 AD2d 189 [1983]; Hospital Serv. Plan of N.J. v Warehouse Prod. & Sales Empls. Union, 76 AD2d 882 [1980]). There was no longer anything to be stayed by the Appellate Division's order which, contrary to petitioner's claim, did not require that occupant be restored to possession.

Once the warrant of eviction had been executed, the proceeding was no longer pending and the court was divested of jurisdiction to hear petitioner's motion, as the only power the court retained, to "restore the tenant to possession subsequent to execution of the warrant," was inapplicable (RPAPL 749 [3]; see Sweet v Sanella, 46 AD2d 688, 689 [1974]; Goldburd v Langer, 62 Misc 3d 140[A], 2019 NY Slip Op 50050[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; 1472 Props., LLC v Solanki, 52 Misc 3d 139[A], 2016 NY Slip Op 51127[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; 1250, LLC v Augustin, 52 Misc 3d 135[A], 2016 NY Slip Op 51035[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Accordingly, the order is reversed, and petitioner's motion to compel the marshal to re-execute the warrant of eviction is denied.

ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 30, 2020