TRI LAND PROPERTIES INC v. Neil B. Hirschfeld, et al., Defendants. (1999)

Order, Supreme Court, New York County (Harold Tompkins, J.), entered November 10, 1998, which, inter alia, granted foreclosure purchaser's motion for a writ of assistance evicting defendant Dube from the subject premises, unanimously affirmed, with costs.

 The purchaser at the foreclosure sale was properly granted a writ of assistance under Real Property Actions and Proceedings Law § 221, where defendants were parties to the underlying foreclosure action, had been served with a copy of the judgment of foreclosure and sale, and were duly apprised of the sale of the property.   We note that while the purchaser did, in fact, serve defendants with a notice to vacate in conformity with RPAPL § 735(1), such service was not a prerequisite to the motion for a writ of assistance (see, Lincoln First Bank v. Polishuk, 86 A.D.2d 652, 446 N.Y.S.2d 399;  Matter of Foreclosure of Tax Liens by City of Buffalo, 142 A.D.2d 1004, 530 N.Y.S.2d 718).   The IAS court properly refused to stay defendant Dube's eviction pending resolution of her application for Loft Law coverage (made after the judgment of foreclosure had already been affirmed [238 A.D.2d 206, 656 N.Y.S.2d 863, lv. denied 90 N.Y.2d 934, 664 N.Y.S.2d 266, 686 N.E.2d 1362] and without notice to the mortgagee and receiver), where the record established that she is an owner-occupant, not a “residential occupant”, of the premises, and that her Loft Law application is therefore patently without merit (see, Friesch-Groningsche Hypotheekbank Realty Credit Corp. v. Slabakis, 215 A.D.2d 154, 626 N.Y.S.2d 124;  First Edition Composite v. Wilkson, 177 A.D.2d 297, 298, 575 N.Y.S.2d 870;  Steltzer v. Eason, 175 A.D.2d 158, 572 N.Y.S.2d 46).   We have considered defendants' remaining arguments, including that the foreclosure should be vacated, and find them unavailing.

MEMORANDUM DECISION.