US 2016 2016 v. Caroline Nicholas, Ivan Nicholas, Karen Nicholas, and Eureka Nicholas, Appellants, Quicine Evans and Errol Brown, Tenants, et al., Undertenants. (2023)

ORDERED that the final judgment is affirmed, without costs.

Petitioner commenced this post-foreclosure summary proceeding (RPAPL 713 [5]) after obtaining ownership pursuant to a referee's deed. In an order dated July 1, 2022, the Civil Court granted petitioner's motion for summary judgment and, pursuant to that order, a final judgment was entered on July 6, 2022.

Preliminarily, contrary to petitioner's argument on appeal, occupants' notice of appeal was timely filed within 35 days from service of the notice of entry by regular mail (see CPLR 2103 [b] [2]; 5513 [a]).

Contrary to occupants' arguments, they did not assert any facts which would make them necessary parties to the underlying foreclosure action. Occupants do not claim that they had any ownership, lease, or property interest in the subject house at the time of the commencement of the foreclosure action. Thus, the Judgment of Foreclosure and Sale entered in that action did not cut off their interests, as they did not have any (see RPAPL 1311; Douglas v Kohart, 196 App Div 84 [1921]). Occupants have not otherwise refuted petitioner's entitlement to possession pursuant to RPAPL 713 (5). Occupants therefore presented no triable issues of fact to defeat petitioner's motion for summary judgment.

Accordingly, the final judgment is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: March 17, 2023