956 Rogers Ave NDB LLC v. Blair

• Decision Date: 20 February 2020
• Docket Number: 71360/19
• Parties: 956 ROGERS AVE NDB LLC, Petitioner, v. "John" BLAIR, "John Doe," "Jane Doe," Respondents.
• Court: New York Civil Court

67 Misc.3d 403
120 N.Y.S.3d 748

956 ROGERS AVE NDB LLC, Petitioner,
v.
"John" BLAIR, "John Doe," "Jane Doe," Respondents.

71360/19

Civil Court, City of New York.

Decided February 20, 2020

120 N.Y.S.3d 749

Petitioner's attorney: Lawrence Stern, New York, Esq., Stern & Stern Esqs.

Respondent's attorney: Kathleen Brennan, Buffalo, Esq., New York Legal Assistance Group

Cheryl J. Gonzales, J.

67 Misc.3d 404

Petitioner commenced this holdover proceeding on July 1, 2019 after serving respondents with a ten day notice to quit after foreclosure pursuant to RPAPL sec 713(5). Attached to the ten day notice is a referee's deed dated May 2, 2019 which transferred title to the property to Labob Krunfol and Daniel Badalov who transferred title to petitioner on the same day. Respondent, Karen Blair, appeared pro se and interposed an answer asserting, inter alia, that she was not properly served after the foreclosure, and no one by the name of John Blair resides in the apartment.

Respondent, Candice McClean, also appeared by counsel, and subsequently moved for an order granting leave to intervene, be named as a respondent and to file a late answer. The resolution court denied Ms. McClean's motion, deemed her answer a general denial and transferred the case to the trial part.

After a conference in the trial part, the parties agreed to submit memoranda on the issue of whether petitioner was required to serve respondent, Candice McClean, who was not in occupancy at the time the foreclosure action was commenced, with a 90 day notice pursuant to RPAPL sec 1305.

Petitioner avers that the subject property was sold at a foreclosure auction pursuant to a judgment of foreclosure and sale in the matter of Nationstar Mortgage LLC v. Karen Blair , Index No. 22150/09. After petitioner took possession of the property, petitioner entered into an agreement with Karen Blair, the former owner, who gave possession of the third floor apartment to petitioner, and informed petitioner that she occupied the first and second floors, but allowed her son to occupy one of the floors. Petitioner then commenced the instant proceeding seeking possession of the first floor of the subject building, and a holdover proceeding seeking possession of the second floor. Petitioner entered into a stipulation of settlement with Karen Blair in the holdover proceeding for possession of the second

67 Misc.3d 405

floor. Petitioner states that Karen Blair also signed an affidavit stating that the occupant of the first floor was not a tenant and did not exclusively occupy that unit. Petitioner contends that after learning of Ms. Blair's affidavit, respondent, Candice McClean, withdrew her motion to dismiss the proceeding based on petitioner's failure to...