Adam Leitman Bailey, P.C., Defeats Motion to Dismiss and Wins Summary Determination in Post-Foreclosure Holdover Proceeding Without Trial
Representing the property owner, following a successful foreclosure action (which we also handled) Adam Leitman Bailey, P.C., successfully opposed a motion to dismiss in a post-foreclosure summary holdover proceeding in Nassau County. We also secured judgment of possession by summary determination under CPLR 409(b) without the need to cross-move or proceed to trial. The Court awarded our client judgment of possession of the property and issued a warrant of eviction.
Following the foreclosure sale of the property, we commenced a post-foreclosure summary eviction proceeding. Before initiating the proceeding, we served the required 10-day and 90-day post-foreclosure notices upon any potential occupants of the property. The occupants were also provided with a copy of the certified referee’s deed, evidencing the petitioner’s ownership of the property following the foreclosure sale.
Two respondents, through counsel, appeared and moved to dismiss the proceeding on two separate grounds.
First, respondents argued that the petitioner was required to commence separate proceedings against other named respondents listed in the petition and against the two movants. Second, respondents alleged that the petitioner failed to comply with RPAPL § 1303 and 1305, statutes governing notices in foreclosure-related proceedings.
Adam Leitman Bailey, P.C., aggressively opposed the motion to dismiss, arguing that the proceeding had been properly commenced and that respondents’ arguments lacked merit.
With respect to the first argument, we demonstrated that summary proceedings are routinely commenced against multiple occupants of the same premises. The respondents named in the petition were the individuals alleged to occupy the apartment; the movants did not argue that they occupied different units within the property, and there was no legal requirement to file separate proceedings.
As to the respondents’ second argument, we established that RPAPL § 1303 applies only to mortgage foreclosure actions, not to post-foreclosure summary holdover proceedings. Accordingly, the statute was inapplicable. We further demonstrated compliance with RPAPL § 1305, and respondents’ own submissions acknowledged receipt of proper notice and awareness of the foreclosure judgment and sale. Finally, we argued that the respondents-movants lacked any valid tenancy or continued possessory interest in the premises following the foreclosure because they admitted to taking occupancy through the prior owner following the filing of the notice of pendency and judgment of foreclosure and sale.
The Court adopted our arguments and denied the respondents’ motion to dismiss.
Moreover, without the need for a cross-motion, based on our request in our opposition papers, and based on the record before the Court, the Court awarded our client summary determination pursuant to CPLR 409(b) and granted our client judgment of possession and directed the issuance and execution of a warrant of eviction without a stay.
Adam Leitman Bailey, P.C. partners, Jackie Weinstein, Vladimir Mironenko, and Danny Ramrattan, represented the owner in the post-foreclosure eviction proceeding.