The following numbered papers were read in connection with this application: NYSCEF Doc Nos. 1-54 (all documents filed in this proceeding). Respondent Austin Smith (“Respondent Smith”) has submitted to this Court a proposed order to show cause to bring on a motion seeking the following relief: (1) pursuant to CPLR 5015 to vacate the judgment rendered on April 13, 2018, and officially recorded on April 18, 2018; (2) to set aside the sheriff’s deed dated June 28, 2021 pursuant to RPAPL 231; (3) to obtain a preliminary injunction as per CPLR 6301; and any other relief that the Court deems just and equitable. (NYSCEF Doc No. 40, Proposed OTSC.) AMENDED DECISION AND ORDER By way of background, this special proceeding was commenced on January 8, 2018, pursuant to CPLR 5227, to direct a turnover of real property owned by Respondent Smith to Petitioner Taaffe Asset Corp. (“Petitioner Taaffe”). Respondent Smith was the owner of the real property located at 529 MacDonough Street, Brooklyn, New York. A judgment on behalf of co-Respondent Donna Grosvenor (“Respondent Grosvenor”) was entered in the Kings County Clerk’s office against Respondent Smith on December 21, 2016, in the amount of $330,835.00. Prior thereto a judgment on behalf of Wenig Saltiel LLP was entered in the Kings County Clerk’s office against Respondent Grosvenor on August 4, 2015, in the amount of $43,656.96, which judgment was thereafter assigned to Petitioner Taaffe. To enforce its acquired judgment against Respondent Grosvenor, Petitioner Taaffe seeks to enforce Respondent Grosvenor’s judgment lien against Respondent Smith. (See generally NYSCEF Doc No. 1, Petition; NYSCEF Doc No. 37, Order of Hon. Bernard J. Graham, J.S.C.; NYSCEF Doc No. 41, James J. Quail Aff.) A judgment in the instant special proceeding was entered on April 18, 2018. It authorized the sheriff to execute on the lien against Respondent Smith by selling the subject property. The property was purchased at auction on June 9, 2021. (See generally NYSCEF Doc No. 15, Judgment; NYSCEF Doc No. 53, Steven Vlock Letter.) The purchaser at the auction, MCD 529 Corp., had commenced an eviction proceeding, and the eviction is impending (see NYSCEF Doc No. 41, James J. Quail Aff 3). Respondent Smith’s counsel’s affirmation asserts that the order to show cause he submitted should be signed inasmuch as an emergency exists due to the impending sheriff’s eviction (based on the sheriff’s deed emanating from the auction sale), service of the papers commencing this special proceeding having been improperly made on Respondent Smith and the improper advertising of the auction (see id. 3, 5-8-131). The proposed order to show cause contains a temporary restraining order against proceeding with the eviction process (see NYSCEF Doc No. 40, Proposed OTSC). This Court notes that subsequent to the judgment in this proceeding having been entered on April 18, 2018, Respondent Smith moved by order to show cause on March 6, 2020, to stay the sheriff’s auction and sale of the property (see NYSCEF Doc No. 23, OTSC). In Respondent Smith’s counsel’s affirmation submitted in support of that motion, it was argued that Respondent Smith was not served with process in the lawsuit which resulted in the judgment lien by Respondent Grosvenor against Respondent Smith (see, e.g., NYSCEF Doc No. 19, Alan J. Sasson Aff 6). Notably, the issue of Respondent Smith’s residence — relevant because Respondent Smith claims he was not served at the proper address in the within proceeding — was raised as an issue: “This is important because Ms. Grosvenor['s] summons identifies Mr. Smith as residing at an alternative residence” (id. 7). Then-counsel Alan J. Sasson also asserted: 9. Austin Smith is pursuing an order to show cause to vacate such default and to simultaneously stop the sale on the premises known as 529 MacDonough Street, Brooklyn, New York 11233 (“Subject Premises”) to which Respondents here seek a Sheriff’s auction and sale. See Complaint (NYSECF Doc No. 3)
