Datta v Dasrath-Mark

[*1] Datta v Dasrath-Mark 2007 NY Slip Op 51467(U) [16 Misc 3d 1118(A)] Decided on August 2, 2007 Nassau Dist Ct Fairgrieve, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 2, 2007
Nassau Dist Ct

Anuj Datta, Petitioner

against

Indira Dasrath-Mark, "John Doe," and "Jane Doe", Respondent(s)



SP 002606/07



REPRESENTATION:

Jeffrey A. Seigel, Esq., Nassau/Suffolk Law Services, Committee Inc., Attorneys for Respondent, One Helen Keller Way, 5th Floor, Hempstead, New York 11550; William A. Gomes, Esq., Guardian ad Litem for Respondent, 59 Clinton Avenue, Rockville Centre, New York 11570, 516-766-8400; Stein, Weiner & Roth, LLP, Attorneys for Petitioner, 7 Penn Plaza, Suite 810, New York, New York 10001.

Scott Fairgrieve, J.

Petitioner has brought a holdover summary proceeding under RPAPL 713(5) to evict respondents from the disputed premises. The Respondent subsequently brought a motion to dismiss on the grounds that the petitioner has brought the petition under an inapplicable statute.

Respondent was the original owner of the home with her former husband. The Petitioner acquired title to the premises on or about January 17, 2006, pursuant to an Order appointing a Receiver to sell the house in August 2005. The Respondent continued to be in possession of the premises, and the Petitioner brought this action.

RPAPL §713(5) allows an action to be brought against a person in possession of property if:

"The property has been sold in foreclosure and either the deed delivered pursuant to such sale or a copy of such deed, certified as provided in the civil practice law and rules, has been exhibited to him."

The purpose of RPAPL §713(5) is to allow for a party who acquires title to a property through foreclosure to remove the previous owner of the property if they refuse to leave the premises. Although the situation in this case is similar, there was never a foreclosure of the property, and for that reason, RPAPL §713(5) is inapplicable. As was stated in Prosnitz v. Augustus, 175 Misc 2d 582 (N.Y.City Civ.Ct. 1998), "Sec. 713(5) concerns itself where the [*2]property has been sold in foreclosures "

Further, in North Shore Motor Lodge Corp. v. Land, 68 Misc 2d 575 (Nass.Co. Dist. Ct. 1971), this Court held that:

"A summary proceeding for possession of real property is a statutory remedy and petition must be strictly construed and, if petitioner can not fit his situation into one of the categories in the statutes, he must be relegated to his action in ejectment"

Thus, for the above stated reasons, the petition must be dismissed without prejudice for the petitioner to bring an action in Supreme Court for an ejectment.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:August 2, 2007

CC:Nassau/Suffolk Law Services Committee, Inc.

William A. Gomes, Esq., Guardian ad Litem for Respondent

Stein, Weiner & Roth, LLP

SF/mp