DECISION AND ORDER UPON the emergency application (seq. no. 12) filed by defendants Shirley LaFond and her adult son, Derick LaFond (“Movants”) (See NYSCEF Doc. No. 64-68) seeking to vacate the judgment of possession (ejectment) entered on December 18, 2023 (See NYSCEF Doc. No. 62), and writ of assistance entered on December 18, 2023 (See NYSCEF Doc. No. 63) (the “Motion”); and UPON the order entered by this Court (Lanzetta, J.) on December 27, 2023, scheduling this Motion to be heard on January 17, 2024 (See NYSCEF Doc. No. 69), and temporarily restraining any enforcement action under the judgment of possession, and the affirmation in opposition by Thomas J. Frank, Esq., of The Frank Law Firm P.C., as counsel of record to CAM Re Ventures 1 REO LLC, the successful purchaser at auction (the “Owner”) (See NYSCEF Doc. No. 71-89), and the reply affirmation submitted by Defendants (See NYSCEF Doc. No. 90), and the memoranda of law submitted by the Defendants and the Owner (See NYSCEF Doc. No. 91-92), and UPON the order of this Court (Maldonado-Cruz, J.) restoring the Motion back to the active calendar (See NYSCEF Doc. No. 107), and upon oral argument by counsel of record before this Court on July 31, 2024, Movant’s motion is DENIED for the following reasons: Movants now argue that the judgment of possession entered on December 18, 2023, and writ of assistance entered on December 18, 2023, must be vacated pursuant to CPLR §§1012(a)1 and 10132 because Owner failed to properly intervene in this matter before seeking the aforementioned judgment and writ. Owner, in opposition, argues that they were not required to formally intervene pursuant to RPAPL §221. RPAPL §221 states, in pertinent part. Where a judgment affecting the title to, or the possession, enjoyment or use of, real property allots to any person a distinct parcel of real property, or contains a direction for the sale of real property, or confirms such an allotment or sale, it also may direct the delivery of the possession of the property to the person entitled thereto…. If a party, or his representative or successor, who is bound by the judgment, withholds possession from the person thus declared to be entitled thereto, the court, by order, in its discretion, besides punishing the disobedience as a contempt, may require the sheriff to put that person into possession. Such an order shall be executed as if it were an execution for the delivery of the possession of the property. A plain reading of RPAPL §221, in which the statute makes a distinction between a “person” and a “party,” indicates that a movant, in this case a purchaser at a foreclosure action, seeking a writ of assistance to obtain possession of the foreclosed property, need not formally intervene in a matter to file for said relief. Moreover, two different appellate divisions in New York state have, without discussing formal intervention as a prerequisite for relief, granted a purchaser at a foreclosure auction a writ of assistance pursuant to RPAPL §221. See Lincoln First Bank, N.A. v. Polishuk, 86 A.D.2d 652 (2nd Dept. 1982); Tri-Land Props. v. 115 W. 28th St. Corp., 267 A.D.2d 142 (1st Dept. 1999). Therefore, movants’ arguments are without merit. Accordingly, it is hereby ORDERED, that the Movant’s Motion is denied in its entirety; and it is further ORDERED, that the temporary restraint directed in the order entered on December 27, 2023 (See NYSCEF Doc. No. 69) is hereby vacated in all respects; and it is further ORDERED, that any other requested relief not expressly addressed herein has nonetheless been considered by this Court and is hereby denied; and it is further, ORDERED, that the Owner shall be permitted to proceed with its enforcement rights under the judgment of possession and writ of assistance, entered on December 18, 2023, upon the entry of this Order; and it is further ORDERED, that Movants shall serve a copy of this Order with Notice of Entry upon the clerk of this court and upon all parties on or before August 22, 2024. This constitutes the Order of the Court. Dated: August 13, 2024
