*1 Petitioner commenced this post-foreclosure holdover action in February 2017 seeking to recover the premises at 142 Overlook Street, Unit 1, Mount Vernon, New York. On May 30, 2017 attorneys for both sides appeared. During the calendar call, petitioner’s counsel sought final possession of the premises with a two month stay. Initially respondents’ counsel, Luz Lizarazo of Cabanillas & Associates, P.C., advised the Court that she wanted the matter adjourned for trial and would not agree to a two month stay. However, when the Court asked respondents’ counsel what the triable issue of facts were, she could not advance a reason for having this matter going to trial, other than her clients wanted to go to trial. Later, while the landlord-tenant part was still in session, attorneys for both sides appeared for a second calendar call. Ms. Lizarazo advised the Court that respondents would agree to a final judgment of possession with a three month stay. Petitioner accepted these terms. Accordingly, the Court (J. Johnson) issued a final judgment of possession with a stay until August 31, 2017. The Judgment and Warrant were entered on September 11, 2017. Respondents’ new counsel, Ira S. Clair (no substitution of counsel has been filed with the Court to date), now moves by Order to Show Cause to vacate the judgment and warrant of eviction. In support of the motion, Respondent Pasquale Cianciulli affirms that he and his family are completely ignorant of what transpired with his former counsel, Cabanillas & Associates, P.C., in court. He argues that he nor his wife or son were in court on May 30, 2017. He maintains that no settlement was reached and he did not receive notice of further proceedings. He states that once he received notice of the warrant of eviction, he reached out to his attorneys at Cabnillas & Associates but did not receive a response. Thus, respondents obtained new counsel.Mr. Clair argues that the petition is defective on its face due to the failure to exhibit the referee’s deed as required by statute. He states that pursuant to RPAPL §713 (5), petitioner was required to “exhibit” the Referee’s Deed to respondents. Instead, per the affidavit of service, the Referee’s Deed was delivered with the 10 day notice to quit via “nail and mail” service. Accordingly, counsel argues that the proceeding should have been dismissed. Counsel further argues that respondents never went to court and never heard anything of
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