Adam Leitman Bailey, P.C. Wins Judgment of Possession and Writ of Assistance in Post-Foreclosure Supreme Court Ejectment Action

Adam Leitman Bailey, P.C. Wins Judgment of Possession and Writ of Assistance in Post-Foreclosure Supreme Court Ejectment Action

Adam Leitman Bailey

Adam Leitman Bailey

January 13, 2023 05:33 PM

Adam Leitman Bailey, P.C. won an order and writ of assistance in the Queens County Supreme Court, which directed the Sheriff to eject the home occupants after foreclosure, and put our client into immediate and exclusive possession of the property.

Representing the buyer of the private Queens home after the foreclosure sale, Adam Leitman Bailey, P.C. served and exhibited the certified referee’s deed to the occupants with the requisite demands for possession. The occupants refused to vacate the home.

While the doors to the Housing Court were effectively closed during the COVID-19 pandemic, Adam Leitman Bailey, P.C. commenced an ejectment action in Supreme Court. In addition to the prior owner and known occupants, Adam Leitman Bailey, P.C. named John and Jane Doe as additional defendants and possible occupants of the home. No one answered the complaint. Adam Leitman Bailey, P.C. moved for default judgment and writ of assistance. The Court partially granted the motion by awarding judgment of possession – but initially declined to grant a writ of assistance, requesting additional proof of delivery of the judgment of foreclosure and sale from the underlying foreclosure action. Around the same time, an occupant – not previously known to our client – filed a hardship declaration in his name.

Adam Leitman Bailey, P.C. entered a judgment of possession against the initially named occupants, and re-served the judgment of foreclosure and sale. Although the summons and complaint were initially served upon John Doe, Adam Leitman Bailey, P.C. also re-served the summons and complaint personally upon the newly appearing occupant. He failed to answer.

By this time, the moratorium expired. Adam Leitman Bailey, P.C. moved for comprehensive relief including substituting the new occupant as John Doe, amending the caption and all papers accordingly, and extending the deadline for service of the summons and complaint upon him beyond the 120-day deadline from the filing of the action upon good cause or in the interests of justice. Adam Leitman Bailey, P.C. also moved for a writ of assistance against the initially named occupants upon the newly re-served judgment of foreclosure and sale, and for judgment of possession on default and a writ of assistance against the newly appearing occupant.

The Court entered a decision and order granting our motion in its entirety. Regarding amendment of the pleadings to substitute the additional defendant, the Court agreed that leave to amend should be freely granted and that Adam Leitman Bailey, P.C. demonstrated that our client performed sufficient due diligence in attempting to ascertain his identity. Regarding the request to extend the service deadline and to deem him served, the Court agreed that the relief was appropriate in the interests of justice based on the meritorious nature of the claims, the brief delay, and the diligent efforts to identify the occupant’s identity. Finally, the Court agreed that Adam Leitman Bailey, P.C. demonstrated entitlement to a writ of assistance against all occupants based on presentment of the judgment of foreclosure and sale and referee’s deed, and the occupants’ failure and refusal to vacate the property.

The Court amended the case caption to substitute the additional occupant, deemed him served, and directed the Sheriff of Queens County or a New York City Marshal to evict all occupants and to put our client into immediate and exclusive possession of the property.

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

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