IN RE: Application of the DORMITORY AUTHORITY OF the STATE OF NEW YORK to acquire title in fee to certain real property for use in a project to expand and consolidate John Jay College of Criminal Justice of the City University of New York.

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of the DORMITORY AUTHORITY OF the STATE OF NEW YORK to acquire title in fee to certain real property for use in a project to expand and consolidate John Jay College of Criminal Justice of the City University of New York. Dormitory Authority of the State of New York, Petitioner-Respondent, v. MTP 59 St LLC, Occupant-Appellant.

Decided: February 14, 2006

TOM, J.P., MAZZARELLI, ANDRIAS, NARDELLI, MALONE, JJ. Cozen O'Connor, New York (Bruce N. Lederman of counsel), for appellant. Berger & Webb, LLP, New York (Charles S. Webb, III of counsel), for respondent.

Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered August 30, 2005, which granted petitioner Dormitory Authority a writ of assistance, directed appellant to vacate the property by September 30, 2005, and granted possession to petitioner by October 1, 2005, inter alia, unanimously affirmed, without costs.

Contrary to appellant-occupant's assertion, it was not denied due process, as it had notice of the proceedings and an opportunity to be heard (see e.g. Matter of Novara ex rel. Jones v. Cantor Fitzgerald, LP, 20 A.D.3d 103, 108, 795 N.Y.S.2d 133 [2005], lv. denied 5 N.Y.3d 710, 804 N.Y.S.2d 34, 837 N.E.2d 733 [2005] ).   Petitioner had the right to proceed solely on an application for a writ of assistance (EDPL 405[A] ), which has no established technical requirements (see e.g. Matter of City of New York p/p/k/a Washington Hgts.-Highbridge Park Community Dev. Area [New York City School Constr. Auth.], 178 A.D.2d 168, 577 N.Y.S.2d 29 [1991], lv. denied 79 N.Y.2d 754, 581 N.Y.S.2d 281, 589 N.E.2d 1263 [1992], 79 N.Y.2d 759, 584 N.Y.S.2d 447, 594 N.E.2d 941 [1992] ).   The statutory term “occupant” denotes a lesser status than that of “tenant” (see Matter of Trustees of State Univ. of N.Y. v. Hermalin, 77 Misc.2d 999, 1001, 357 N.Y.S.2d 341 [App. Term 1974], affd. 51 A.D.2d 1021, 382 N.Y.S.2d 291 [1976] ).   In the unique circumstances of this case, it was not error for the motion court to direct, in an order to show cause, that service be made on appellant through counsel;  by that service, appellant was given the required notice and opportunity to be heard (cf. Citibank v. Plagakis, 21 A.D.3d 393, 394-95, 800 N.Y.S.2d 192 [2005] ).