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Adam Leitman Bailey, P.C. Wins Summary Judgment in Post-Foreclosure Holdover Proceeding and Achieves Eviction

Representing the buyer of a foreclosed property in Queens, Adam Leitman Bailey, P.C. prosecuted a holdover proceeding during COVID, won summary judgment of possession, and achieved a marshal’s eviction in November 2021.

The owner bought the property in 2019 pursuant to a referee’s deed in foreclosure and filed the eviction proceeding in early 2020 through a different law firm. The case was first calendared for March 2020, then adjourned indefinitely due to COVID. The owner retained Adam Leitman Bailey, P.C. to push the proceeding forward.

The prior owner refused to vacate the property. She filed an answer challenging the validity of the foreclosure action and the referee’s deed. In the summer of 2021, after our requests, the Court scheduled the case for a conference. We pushed for and obtained a trial date, or a date by which to move for summary judgment on the possessory claim.

As soon as the proceeding was reinstated, we moved for summary judgment. We argued that there were no questions of fact regarding the owner’s entitlement to possession of the property, and that the prior owner’s challenge of the foreclosure action and the referee’s deed were meritless because the issues were conclusively decided in the foreclosure case, because she was estopped from re-litigating those claims in this proceeding, and because questions of ownership of the property cannot be decided in a summary proceeding.

The prior owner also argued in opposition to our motion that she filed mechanics liens based on work she allegedly performed on the property. In response, we argued that the mechanics liens (which by then were discharged in another action) were irrelevant to the issue of possession.

The Court agreed with our arguments and granted summary judgment in our client’s favor, finding that we set out a prima facie entitlement to possession and that the prior owner failed to demonstrate a factual dispute to our client’s possessory claim.

While the prior owner did not file a hardship declaration, we were prepared to challenge any attempts to stay the case based on the recent case law holding that a post-foreclosure holdover occupant is not a tenant and not entitled to the protections of the COVID-19 moratorium laws.

We obtained a judgment, immediately contacted a marshal, worked with the marshal on the issuance of a warrant of eviction, scheduled the eviction, and, after service of the eviction notices, coordinated a smooth eviction, placing the current owner in possession of its property.

Vladimir Mironenko, partner in Adam Leitman Bailey, P.C.’s Landlord-Tenant and Litigation Departments represented the owner.

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