T11 Funding v Lewis

[*1] T11 Funding v Lewis 2016 NY Slip Op 51397(U) Decided on October 4, 2016 Supreme Court, Westchester County Giacomo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 4, 2016
Supreme Court, Westchester County

T11 Funding, Plaintiff,

against

Charlayne Lewis as Voluntary Administratrix and Helen McCoy, Defendants.



56508/2015



Plaintiff

Barry Neeson

700 White Plains Road

Scarsdale NY 10583

Defendant

Nicole Black

4 New King Street

White Plains, NY 10604
William J. Giacomo, J.

Plaintiff commenced this residential mortgage foreclosure action on June 19, 2014. The property was sold at public auction on October 6, 2015 for $190,000. The referee executed a deed to purchaser C2GRE LLC on October 28, 2015.

C2GRE LLC, commenced a summary proceeding in Yonkers City Court to evict defendants from the premises. A warrant of eviction was granted in January 2016 but later vacated.

C2GRE LLC now moves for a judgment of possession via a writ of assistance pursuant to RPAPL § 221. C2GRE LLC argues that it served Helen McCoy at the subject premises with this application and a copy of the referee's deed. It also left a copy of the documents with Ms. McCoy for the benefit of Lewis. On April 25, 2016 C2GRE LLC's attorney waited outside the premises. At 8:00 he observed Lewis open the door then make eye contact with him. Thereafter, she did not leave the house nor did she answer the door when the process server knocked. C2GRE LLC argues that it is entitled to a judgment of possession and Lewis should be deemed served by substitute service because she is purposefully evading service.

In opposition, Lewis submits her attorney's affirmation. In the affirmation, Lewis argues that C2GRE LLC is not entitled to possession because the referee's deed was not exhibited or produced to her personally. In support of her opposition, Lewis relies on Colony Mortgage v. Mercado, 192 Misc 2d 704 [Westchester Supreme Ct 2002], in which Judge Lefkowitz held that since the judgment of foreclosure in that case required that the referee's deed be produced, merely serving it on a tenant pursuant to CPLR 308(4) does not satisfy the requirements of the statute. Thus, the Court found that the plaintiff did not meet the statutory requirement for a writ of assistance for possession of the premises.

Discussion

Real Property Acts and Procedure Law § 221. Compelling delivery of possession of real property, provides:

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, subject to the rights and obligations set forth in section thirteen hundred five of this chapter.

If a party, or his representative or successor, who is bound by the judgment, withholds possession from the person thus declared to be entitled thereto, the court, by order, in its discretion, besides punishing the disobedience as a contempt, may require the sheriff to put that person into possession. Such an order shall be executed as if it were an execution for the delivery of the possession of the property.

Real Property Acts and Procedure Law § 735 (1) Manner of service; filing; [*2]when service complete,

1. Service of the notice of petition and petition shall be made by personally delivering them to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the notice of petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it; or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail,

(a) if a natural person, as follows: at the property sought to be recovered, and if such property is not the place of residence of such person and if the petitioner shall have written information of the residence address of such person, at the last residence address as to which the petitioner has such information, or if the petitioner shall have no such information, but shall have written information of the place of business or employment of such person, to the last business or employment address as to which the petitioner has such information;

In Tri-Land Props. v 115 W. 28th St. Corp., (267 AD2d 142 [1st Dept 1999]), the First Department stated:

The purchaser at the foreclosure sale was properly granted a writ of assistance under RPAPL 221, where defendants were parties to the underlying foreclosure action, had been served with a copy of the judgment of foreclosure and sale, and were duly apprised of the sale of the property. We note that while the purchaser did, in fact, serve defendants with a notice to vacate in conformity with RPAPL 735 (1), such service was not a prerequisite to the motion for a writ of assistance (see, Lincoln First Bank v Polishuk, 86 AD2d 652; Matter of Foreclosure of Tax Liens by City of Buffalo, 142 AD2d 1004).

This holding was followed by the Second Department in Citibank v. Plagakis, 21 AD3d 393, 800 N.Y.S.2d 192 [2d Dept.2005], in which the Second Department upheld a court's issuance of a writ of assistance despite the fact that one of the tenants had not been noticed or given an opportunity to be heard. Upon defendant Plagakas' default in answering, the Supreme Court issued a judgment of foreclosure and scheduled a sale of the property. After the property was sold at auction, the court issued a writ of [*3]assistance that directed removal of the tenants although only one had been properly served and joined as a party to the underlying foreclosure proceeding (id.). The tenants appealed and the individual tenant who had not been served claimed that the writ violated his right to due process since, as a party to the lease, he had a property interest in the premises (id.). The court found that the tenant's argument lacked merit because the deed that conveyed the property from the homeowner-mortgagee to the third-party buyer was invalid and therefore, so was the lease.

While the facts of Citibank v. Plagakis are distinguishable from this case, they do establish that where a defendant is a party to the action and has been duly served with the judgment of foreclosure and sale and apprised of the sale of the property, service of notice to vacate is not a prerequisite to a writ of assistance pursuant to RPAPL § 735(1).

This Court agrees with the Court in Deutsche Bank Natl. Trust Co. v Resnik, 24 Misc 3d 1238(A) [Sup Ct Nassau Cty 2009]), which stated:

[T]hre is 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. (quoting Bergman, NY Mortgage Foreclosures, supra, § 33.02[2] [2006].

The Court also notes that in the case cited by defendant Colony Mortgage v. Mercado, 192 Misc 2d 704 [Westchester Supreme Ct 2002], it is not clear if the person served was the defendant in the foreclosure action or a tenant of the premises although the Court refers to them as "occupants." Thus, Colony Mortgage is distinguishable from the facts of this case. Here, defendant Charlayne Lewis was the named defendant borrower who did not contest service in the underlying foreclosure action. The Court holds she was properly served pursuant to CPLR 308(2) with the notice of foreclosure and sale and a copy of the referee's deed.

Based on the foregoing, plaintiff's motion for the issuance of judgment of possession is GRANTED.

Dated: White Plains, New York

October 4, 2016

HON. WILLIAM J. GIACOMO, J.S.C.