ADAM SEIDEN, J.
Louis M. Spizzirro, Esq., Yonkers, for Respondents.
Gillian Brown, Esq., Rosicki, Rosicki & Associates, PC, Plainview, for Petitioner.
ADAM SEIDEN, J.
Petitioner commenced this post-foreclosure holdover action in September 2012 seeking to recover the premises at 17 N. High Street in Mount Vernon, NY. On October 15, 2012, respondent Beulah Williams appeared and the court awarded a final judgment of possession against respondents with a stay through November 10, 2012. A judgment and warrant was issued on November 20, 2012 and re-issued on August 12, 2013, March 6, 2014 and June 24, 2014. Over the course of the proceedings, the respondents filed several order to show causes. They were denied on October 9, 2013, October 3, 2014 and October 17, 2014. Petitioner's attorney Gillian Brown, via affirmation dated June 30, 2015, affirmed in pertinent part that the lockout on October 20, 2014 was not completed and that the occupants and their personal belongings remain in the subject premises. She further stated that the Sheriff's office had requested a new warrant since the warrant issued in June expired. The warrant was re-issued on July 27, 2015 (J. Blackwood).
Marcelline Oteri now moves by Order to Show Cause, dated October 16, 2015 to vacate the judgment and warrant of eviction. She states that she resides on the second floor of the premises and was never served with any court papers in this proceeding.
In further support, respondent's attorney, Louis M. Spizzirro, argues that petitioner engaged in ex-parte communications with the Court to obtain a new warrant of eviction after the previous warrant expired.
In opposition to the motion, petitioner states that Respondent “Oteri” s/h/a “Jane Doe” is an occupant of the premises and has been residing rent free in the premises. Petitioner states that Respondent Beulah Williams is the prior mortgagor and/or occupant of the premises and has been residing rent free for 5 years. On December 11, 2011, a Judgment of Foreclosure and Sale was entered in the Supreme Court, County of Westchester. A sale of the property was held on February 14, 2012. Petitioner was the successful bidder at the sale and a Referee's Deed was duly executed to the Petitioner. Respondents failed to vacate and petitioner was forced to commence a holdover proceeding. Petitioner argues that Marcelline Oteri's application is another attempt to thwart Petitioner's attempts to acquire the property. Petitioner argues that respondents have filed numerous orders to show causes over the past three years that have consistently delayed their eviction. Petitioner argues that respondent has waived any right to challenge service of any underlying papers in this action in that she has waited over three years to assert that she did not receive any of the court papers in this action. Petitioner also argues that respondent has waived any defenses to lack of personal jurisdiction or to seek vacatur of the default judgment due to laches. Counsel argues that Ms. Oteri had to be aware that a judgment and warrant was issued before filing the instant order to show cause as prior notices of eviction had been served on the property, and further, a prior lockout by the City Marshal had been attempted but not completed in October 2014. Respondent waited almost a year before filing the order to show cause in which she alleges non-service.
CPLR § 5015 states that “The court which rendered a judgment or order may relieve a party from it upon such terms as may be just ... upon the ground of: 1. excusable default....” CPLR § 5015(a). A motion to vacate a judgment entered upon default may be granted if the movant establishes that its default was excusable and that it has a meritorious defense to the action. Barbagallo v. Nationwide Exterminating & Deodorizing, Inc., 260 A.D.2d 518, 688 N.Y.S.2d 246 (2d Dept.1999) ; Grutman v. Southgate at Bar Harbor Home Owners' Assn., 207 A.D.2d 526, 616 N.Y.S.2d 68 (2d Dept.1994). “The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the court.” Grutman, 207 A.D.2d at 527, 616 N.Y.S.2d 68.
In view of the foregoing, the Court finds that respondent has raised no grounds upon which to vacate the judgment and warrant of eviction. RPAPL § 1305 governs notice to tenants in foreclosure actions. RPAPL § 1305(3) provides that “a successor in interest of residential real property shall provide written notice to all tenants: (a) that they are entitled to remain in occupancy of such property for the remainder of the lease term, or a period of ninety days from the date of mailing of such notice, whichever is greater.” “Tenant shall mean any person who ... appears as a lessee on a lease ...; or who at such time is a party to an oral or implied rental agreement with mortgagor and obligated to pay rent to mortgagor” (RPAPL § 1305(1)(c) ). In the motion papers, respondent does not provide the court with any documentation to support her claim of tenancy at the time this action or the foreclosure action was commenced. She does not state how long she has been a tenant, the nature of her tenancy, provide any lease agreement or proof of rental payments made. Accordingly, the court cannot find that respondent was required to be served per RPAPL Article 13.
Nevertheless, pursuant to the affidavits filed with the Court, the 90 Day Notice to Vacate, dated June 11, 2012, with certified copies of Referee's Deed, Limited Power of Attorney and Affidavit of Full Force and Effect were served on all tenants and occupants in accordance with the Protecting Tenants at Foreclosure Act, RPAPL § 1305 and RPAPL § 713(5). Petitioner has filed affidavits of service demonstrating service of said documentation on Beulah Williams, Paul Campbell, Kathy Campbell, Kenrick Campbell, “John Doe” and “Jane Doe”. They were all served on June 16, 2012 at 7:00am at 17 N. High Street via service on a person of suitable age and discretion, Rita Hyne. The Notice of Petition and Petition were served on Kenrick Campbell, Kathy Campbell, Paul Campbell, Beulah, Williams, Rita Hyne, Jane Doe and John Doe on October 3, 2012 at 8:00am at 17 N. High Street, Mount Vernon. The papers were delivered to Rita Hyne, a person of suitable age and discretion.
CPLR 1024 permits a party to proceed against another party with use of a pseudonym, such as “Jane Doe” when all parties names and identities are unknown. As the petitioner states above, the Court finds it incredible that the respondent was not aware of these proceedings prior to October 2015, as this case has been pending since 2012. Nevertheless, it is well established that unsubstantiated and conclusory denials of service are insufficient to rebut the prima facie evidence of proper service created by the process server's sworn affidavit of service (Citimortgage, Inc.v Pembelton, et als, 39 Misc.3d 454, 960 N.Y.S.2d 867 (Sup Ct. Suffolk Co.2013) ). Respondent merely claims she was never served. Therefore, the Court finds that respondent has not demonstrated an excusable default.
Respondent has also failed to demonstrate a meritorious defense. In this proceeding, petitioner has exhibited a judgment of foreclosure, sale of the premises, and referee's deed by which petitioner took title. Thus, petitioner has established that it is the legal owner of the subject premises. Respondent does not claim ownership of the premises (See Chopra v. Prusik, 9 Misc.3d 42, 801 N.Y.S.2d 692 (2d Dept.2005) ).
Order to Show Cause denied. The warrant of eviction shall issue with no further stay.
This constitutes the Court's Decision and Order.
The Court reviewed and considered the following papers on this motion: Order to Show Cause, October 16, 2015, Affirmation in Support, filed November 6, 2015. Affirmation in Opposition, dated October 29, 2015.
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