Adam Leitman Bailey, P.C. Wins Summary Judgment and Dismissal of Prior Owner’s Affirmative Defenses in Highly Contested Post-Foreclosure Eviction Proceeding
Representing the purchaser of a single-family Queens home after foreclosure, Adam Leitman Bailey, P.C. won summary judgment and dismissal of affirmative defenses with a judgment and warrant of eviction against the prior owner following a foreclosure sale.We commenced the summary eviction proceeding by filing a holdover petition after serving the prior owner with a requisite notice to quit and exhibiting to him the certified referee’s deed in foreclosure.The respondent, through counsel, answered the case asserting a myriad of affirmative defenses, including failure to properly serve the commencement papers, misdescription of the premises alleging that the respondent occupies only a portion of it, failure to properly plead the rent regulatory status of the premises as a de facto multiple dwelling arguing that the one family home has been converted to at least seven units, and asserting rent stabilization rights claiming that the respondent paid rent to an unidentified individual purporting to be an owner before the foreclosure sale while the respondent still owned the premises.We immediately moved for summary judgment, to dismiss the affirmative defenses, and, in the alternative, for use and occupancy pendente lite.In support of the motion, we argued that the respondent’s service and premises description defenses are meritless because, as the prior owner of the premises, he is in constructive possession of the entire premises and that the challenge to the mailing of the petition to an additional address, even if respondent no longer had a connection to that address, is irrelevant since service was completed timely and properly at the premises. We also argued that the respondent’s de facto multiple dwelling defense fails because there is no dispute that our client never controlled the premises, any condition was created by the respondent, and the respondent should not benefit from his own wrongdoing. We countered the respondent’s claims to rent stabilization using case law to show that as the prior owner, he cannot also be a tenant or entitled to rent stabilization protections.The court agreed with and adopted our arguments in its decision, granting our client summary judgment of possession with the issuance and execution of a warrant of eviction. Vladimir Mironenko, a partner in Adam Leitman Bailey, P.C., represented the owner.