This decision has been referenced in a table in the New York Supplement.
Rose & Rose by Todd A. Rose, Esq., New York, attorneys for petitioner.
Sokolski & Zekaria, PC by Daphna Zekaria, Esq., New York, attorneys for respondent.
SABRINA B. KRAUS, J.
NORFOLK DEVELOPMENT LLC
(Petitioner) commenced this summary holdover proceeding to recover possession of 106 Norfolk Street, Apartment 25, New York, N.Y. 10002 (Subject Premises) on the grounds that ELIZABETH KEE (Respondent) did not occupy the Subject Premises as her primary residence. After six years of litigation, including two interim appeals, This Court issued a decision dated June 12, 2013, awarding Petitioner a final judgment of possession after trial, and staying execution of the warrant through July 15, 2013. The warrant of eviction issued on July 1, 2013. On July 3, 2013, Respondent served and filed a notice of appeal. A Marshal's notice of eviction was served on July 18, 2013. Respondent asserts that she did not received the notice as required. A Marshal executed on the warrant of eviction on July 26, 2013. Respondent now moves for an order restoring Respondent to the Subject Premises, staying reletting of the Subject Premises and for related relief. On August 6, 2013, the court heard argument and reserved decision.
Respondent alleges that on July 15, 2013, she traveled to upstate New York and that she did not return to New York City until Sunday July 21, 2013, when she went to a birthday dinner in Queens and spent the night there. Respondent asserts that on the morning of July 22, 2013, she went to the Subject Premises to check her mail and get a change of clothes, and that there was no Marshal's notice posted on her door, and no copy of a Marshal's notice had been delivered to her by mail as of said date. Respondent left and did not return to the Subject Premises again until July 29, 2013, when she discovered she had been evicted. At that time, Respondent acknowledges a copy of the Marshal's notice of legal possession was posted on the door to the Subject Premises. On the same date, when she checked her mail she saw a copy of the Marshal's notice which had been postmarked July 18, 2013. Respondent further asserts use and occupancy for August was tendered and received.
Petitioner provides the affidavit of service by Timothy Thompson, a licensed process server, who asserts that on July 18, 2013 at 6:51 am he posted the notice of eviction on Respondent's door, with a prior attempt having been made on July 17, 2013 at 2:16 pm. Attached to Petitioner's opposition papers is a photograph of the Marshal's notice posted on the door to the Subject Premises, advising that Respondent could be subject to an eviction as early as July 26, 2013, and showing the date of the notice as July 18, 2013. Petitioner's agent alleged that said notice remained posted on the door to the Subject Premises through and including July 26, 2013, when the warrant was executed. A second photograph showing both notices on the door to the Subject Premises, and alleged to have been taken on July 26, 2013, is also attached to the opposition papers.
The parties papers primarily focus on whether the Marshal's notice was properly served and whether Respondent had received the notice prior to the execution of the warrant. However, while Respondent's allegation of improper service of the notice of eviction by the Marshal may give rise to liability against the Marshal if established, it does not effect the validity of the judgment, nor does it render invalid the execution of the warrant as to Petitioner in this proceeding ( Presidential Management Co. v. Farley 78 Misc.2d 610, 359 N.Y.S.2d 424; Graham v. Moore 10 Misc.3d 133(A)). Therefore, the court finds that there is no need to conduct to a hearing to determine if the Marshal properly served the notice of eviction. The real issue remains what relief, if any, is Respondent pending appeal of this court's June 12, 2013 decision.
Petitioner argues that any appeal of this court's decision after trial has been rendered moot by the execution of the warrant. The court disagrees. The cases relied upon by Petitioner are not applicable to the case at bar. For example, in Michalak v. Fechtel 27 Misc.3d 140(A), 2010 WL 2104868 the Respondent had consented to entry of a judgment and therefore had waived the right to appeal.
It is well settled that the Civil Court may, in appropriate circumstances, restore a tenant to possession, after execution of the warrant ( Brusco v. Braun 84 N.Y.2d 674,682). A determination as to whether good cause exists to restore a tenant to possession after execution of the warrant " ... is entrusted to the sound discretion of the court upon review of the particular facts and circumstances presented ( Harvey 1390 LLC v. ...