Present: Hon. Duane A. Hart, Justice.

Transcription

1 At an I.A.S. Part of the Supreme Court, held in and for the County of Queens at the Courthouse thereof on the day of, 2014 Present: Hon. Duane A. Hart, Justice. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS X EMIGRANT BANK, -against- Plaintiff, JULLIZA PEREZ A/K/A JULLIZA PEREZ SOLIS; NYC PARKING VIOLATIONS BUREAU; NYC ENVIRONMENTAL CONTROL BOARD; NANDO PEREZ; DEPARTMENT OF PRESERVATION & DEVELOPMENT; FOODNATION INC.; DONNA CHIARMONTE; PATRICIA CHIARMONTE; MELISSA CHIARMONTE, Index No: 26887/2009 EMERGENCY ORDER TO SHOW CAUSE with T.R.O Justice Assigned: Hon. Duane A. Hart Defendants X Upon the affirmation of Brian McCaffrey, Esq. of Brian McCaffrey, P.C., and upon all prior papers and proceedings in this action, it is hereby ORDERED, that the Plaintiff show cause before this Court, at IAS Part Rm., to be held at the courthouse located at Sutphin Boulevard, Jamaica, New York, on the day of 2014 at A.M. / P.M of that day, or as soon thereafter as counsel can be heard, why an order affecting the unnamed Non-party Defendants possessory right s in the property located at rd Street, 1 st Floor and 2 nd Floor, East Elmhurst, NY (hereinafter the Property ), should not be entered in this action granting; (a) A Temporary Restraining Order, pending a decision on this motion for a Preliminary Injunction, restraining the Plaintiff, EMIGRANT BANK and their successor and or assigns, and specifically, Retained Realty, Inc., from conducting an eviction of Jose Fernando

2 Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children (hereinafter collectively referred to as Non-party Defendants ), from the 1st Floor and 2nd Floor of the Property, pursuant to this Court s amended order dated September 11, 2014 and an undated Sheriffs Notice which was served upon the Non-party Defendants on or about Friday October 3, 2014, as the Court lacks personal jurisdiction over the Non-party Defendants who have never appeared in this action, were never served with the Plaintiff s Motion seeking a writ of assistance or this Court s subsequent amended Order of Eviction, and will be irreparably harmed if the eviction is not stayed; and; and (b) A Temporary Restraining Order, pending a decision on this motion for a Preliminary Injunction, restraining the Plaintiff, EMIGRANT BANK and their successor and or assigns, and specifically, Retained Realty, Inc., from scheduling any further evictions of the Nonparty Defendants from the Property, while the Court is deliberating on the Non-party Defendants, instant order to show cause; and (c) Vacating this Court s order of eviction as it pertains to the 1st Floor and 2nd Floor of the Property known as and located at rd Street, East Elmhurst, NY and the tenancy of Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children; and (d) Vacating the Five-Day Eviction Notice issued by the NYC Sheriff as to Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children; and (e) Directing Plaintiff to pursue eviction of the Non-party Defendant s in the New York City Housing Court; or in the alternative (f) Allowing the Non-party Defendants to remain in the Property for six (6) month s while looking for a new place to live; and (g) Attorney s fees and costs associated with this motion; and

3 (h) Such other and further relief as this Court may deem just, proper or equitable. THEREFORE, sufficient reason appearing it is; ORDERED, that Plaintiff, EMIGRANT BANK and their successor and or assigns, and specifically, Retained Realty, Inc., is stayed from conducting an eviction of Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children (hereinafter collectively referred to as Non-party Defendant s ), from the 1 st Floor and 2 nd Floor of the Property known as and located at rd Street, 1 st Floor and 2 nd Floor, East Elmhurst, NY pending a determination on this order to show cause. ORDERED, that Plaintiff, EMIGRANT BANK and their successor and or assigns, and specifically, Retained Realty, Inc., is stayed from scheduling any further evictions of Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children (hereinafter collectively referred to as Non-party Defendant s ), from the 1 st Floor and 2 nd Floor of the Property known as and located at rd Street, 1 st Floor and 2 nd Floor, East Elmhurst, NY pending a determination on this order to show cause. ORDERED, that this order does not stay the eviction of all occupants of the Basement of the Property known as and located at rd Street, East Elmhurst, NY and that the Order of Possession is in full force and effect as to all occupants of the Basement of said property. ORDERED, that a copy of this order and of the papers on which it is based, by overnight express delivery on or before, 2014, to the Plaintiff s attorney, Stagg, Terenzi, Confusione & Wabnik, LLP, 401 Franklin Avenue, Suite 300, Garden City, NY 11530, be deemed sufficient service thereof. Dated: County: Queens, N.Y. Entered: J.S.C.

4 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS X EMIGRANT BANK, -against- Plaintiff, Index No: 26887/2009 ATTORNEY AFFIRMATION OF EMERGENCY JULLIZA PEREZ A/K/A JULLIZA PEREZ SOLIS; NYC PARKING VIOLATIONS BUREAU; NYC ENVIRONMENTAL CONTROL BOARD; NANDO PEREZ; DEPARTMENT OF PRESERVATION & DEVELOPMENT; FOODNATION INC.; DONNA CHIARMONTE; PATRICIA CHIARMONTE; MELISSA CHIARMONTE, Defendants X Brian McCaffrey, Esq., an attorney duly admitted to practice before the Courts of the State of New York hereby affirms the following under the penalty of perjury: 1. I am the attorney for non-party Defendants Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children. I submit this affirmation in support of the Non-party Defendants motion brought on by Order to Show Cause. I am fully familiar with the matters set forth below based upon my review of the file. 2. This action was brought by Plaintiff to foreclose on the property known as and located at rd Street, East Elmhurst, NY This motion is brought on by Order to Show Cause seeking a temporary restraining order to stay the eviction of the above named individuals in paragraph 1 above because they have received a notice of

5 eviction on Oct. 5, 2014 giving them only five (5) days to vacate. The named individuals were never served with any notice of these proceedings including but not limited to the Plaintiff s application for a Writ of Assistance. They have possessory rights that will be extinguished without due process of law if the instant Order is not signed by this Court. They have children and will be put out on the street if the warrant of eviction is not stayed. My office notified the plaintiff s attorney, Stagg, Terenzi, Confusione & Wabnik, LLP, that this order to show cause would be brought at this Court, located at Sutphin Boulevard, Jamaica, New York, on Friday, October 10 at 10:00 a.m. We notified Plaintiff by facsimile transmission to Marcus Cheung, Esq., of Stagg, Terenzi, Confusione & Wabnik, LLP, at Fax: and transmission to mcheung@stcwlaw.com on Wednesday October 8, 2014 at 10:00 a.m.and verbally notifying by telephone at (516) , Marcus Cheung, Esq. of said firm at 8:58 a.m. on Thursday, October 9, Marcus Cheung, Esq., of Stagg, Terenzi, Confusione & Wabnik, LLP, indicated that he would be appearing to oppose the Order to Show Cause. STATEMENTS PURSUANT TO CPLR 2217(b) 3. I hereby submit this affirmation pursuant to CPLR 2217(b), which requires disclosure of any prior motion on the part of Non-party Defendants Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children for similar relief. 4. While it appears from the Court record that there have been prior orders to show cause filed in this action by other defendants, Non-party Defendants Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor

6 children, have never appeared in this action and I hereby affirm that no previous application for the relief herein prayed for has been made by non-party Defendant s Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children. Dated: October 9, 2014 Queens, NY Brian McCaffrey Attorney at Law, P.C. Brian McCaffrey, Esq. Attorneys for Defendant Sutphin Blvd., 1 st Floor Jamaica, NY Ph: (718) Fax: (718)

7 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS X EMIGRANT BANK, -against- Plaintiff, Index No: 26887/2009 ATTORNEY AFFIRMATION With Statements Pursuant to CPLR 2217(b) JULLIZA PEREZ A/K/A JULLIZA PEREZ SOLIS; NYC PARKING VIOLATIONS BUREAU; NYC ENVIRONMENTAL CONTROL BOARD; NANDO PEREZ; DEPARTMENT OF PRESERVATION & DEVELOPMENT; FOODNATION INC.; DONNA CHIARMONTE; PATRICIA CHIARMONTE; MELISSA CHIARMONTE, Defendants X Brian McCaffrey, Esq., an attorney duly admitted to practice before the Courts of the State of New York hereby affirms the following under the penalty of perjury: 1. I am the attorney for non-party Defendants, Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children. I submit this affirmation in support of the Non-party Defendants motion brought on by Order to Show Cause. I am fully familiar with the matters set forth below based upon my review of the file. 2. This action was brought by Plaintiff to foreclose on the property known as and located at rd Street, East Elmhurst, NY I make this affirmation in support of an order directing Plaintiff to show cause why this Court should not enter an order granting: (a) A Temporary Restraining Order, pending a decision on this motion for a Preliminary Injunction, restraining the Plaintiff, EMIGRANT BANK and their successor and or assigns, and specifically, Retained Realty, Inc., from conducting an eviction of Jose Fernando

8 Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children (hereinafter collectively referred to as Non-party Defendants ), from the 1 st Floor and 2 nd Floor of the Property, pursuant to this Court s amended order dated September 11, 2014 and an undated Sheriffs Notice which was served upon the Non-party Defendants on or about Friday October 3, 2014, as the Court lacks personal jurisdiction over the Non-party Defendants who have never appeared in this action, were never served with the Plaintiff s Motion seeking a writ of assistance or this Court s subsequent amended Order of Eviction, and will be irreparably harmed if the eviction is not stayed; and; and (b) A Temporary Restraining Order, pending a hearing for a Preliminary Injunction, restraining the Plaintiff, EMIGRANT BANK and their successor and or assigns, and specifically, Retained Realty, Inc., from scheduling any further evictions of the Non-party Defendants from the Property, while the Court is deliberating on the Non-party Defendants, instant order to show cause; and (c) Vacating this Court s order of eviction as it pertains to the 1 st Floor and 2 nd Floor of the Property known as and located at rd Street, East Elmhurst, NY and the tenancy of Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children; and (d) Vacating the Five-Day Eviction Notice issued by the NYC Sheriff as to Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children; and (e) Directing Plaintiff to pursue eviction of the Non-party Defendant s in the New York City Housing Court; or in the alternative (f) Allowing the Non-party Defendants to remain in the Property for six (6) month s while looking for a new place to live; and (g) Attorney s fees and costs associated with this motion; and

9 (h) Such other and further relief as this Court may deem just, proper or equitable. STATEMENTS PURSUANT TO CPLR 2217(b) 4. I hereby submit this affirmation pursuant to CPLR 2217(b), which requires disclosure of any prior motion on the part of Non-party Defendants Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children for similar relief. 5. While it appears from the Court record that there have been prior orders to show cause filed in this action by other defendants, the movants herein, Non-party Defendants, Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children, have never appeared in this action and I hereby affirm that no previous application for the relief herein prayed for has been made by non-party Defendant s Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children. PRELIMINARY STATEMENT 6. This case pits the unwitting victims of Defendant, Nando Perez, against the fee simple owner of the Property, because Nando Perez held himself out to be the owner of the Property, and rented the Property to the Non-party Defendants who have paid their rents up until the time when they were served with the Sheriff s Five-Day Eviction Notice only five (5) days ago. 7. The Plaintiff commenced this action to foreclose on a mortgage secured by the Defendants Property located at rd Street, East Elmhurst, NY on or about October 7, Plaintiff, EMIGRANT BANK and their successor and or assigns, and specifically, Retained Realty, Inc., obtained a fee simple interest in the Property by way of a Referee s Deed dated September 7, It appears from the record that the Plaintiff filed several Motions for Writ of Assistance and obtained a number of orders from this Court. On or about August 21, 2014 Plaintiff filed the latest Notice of Motion. See Notice of Motion stamped Filed Aug Exhibit A

10 10. The record does not reflect that the Plaintiff attempted to affect service upon the Non-party Defendants nor John Doe and/or Jane Doe. Thus, the Court s Order is not valid as to the Non-party Defendants who occupy the property as tenants who have paid rent to live there since well before the Plaintiff s latest motion was made. 11. On or about September 11, 2014 this Court issued an amended order of eviction as to any occupant within the premises known as rd Street, Basement, First Floor, Second Floor, East Elmhurst, NY Neither the Order nor the or the Motion which resulted in the Order were ever served upon the Non-party Defendants who bring this Order to Show Cause. See Amended Order Exhibit B 12. On or about Friday October 3, 2014, the NYC Office of The Sheriff served a Five-Day Eviction Notice upon the Non-party Defendants by knocking on their door and handing them the notice. On October 6, 2014 the Non-party Defendants retained your affiant to represent them in this action. See Sheriff s Notice Exhibit C 13. In the case at bar the Plaintiff never served the Non-party Defendants, (who are tenant s in the Property of the 1 st Floor and 2 nd Floor), with their motion for an order Granting Writ of Assistance to Compel Delivery of Possession. Indeed, in support of their motion Plaintiff submitted the reply affirmation of Marcus Cheung, Esq., dated June 3, 2014 and filed with the Court on August 21, 2014, wherein he states at 2 that upon information and belief, as of the date of this affirmation, the former owner occupies the basement floor and the first and second floors are vacant. [emphasis added] See Cheung Affirmation Exhibit D 14. This statement was either the result of poor due diligence, inadvertent mistake or purposeful misrepresentation, as the Non-party Defendants have occupied the 2 nd Floor since March 7, 2014, and the 1 st Floor since June 1, See Defendants affidavits annexed hereto.

11 15. Non-party Defendants have been diligently paying rent in the amount of $2, for the 1 st Floor and $2, for the 2 nd Floor, to Defendant NANDO PEREZ, who they believed was the owner of the Property. See Rent Receipts Exhibit E. ARGUMENTS 16. The Plaintiff s Motion for Writ of Assistance and this Court s subsequent Amended Order of Eviction did not extinguish the Non-party Defendants possessory interests in the Property. In order to cut off the interest of an occupant of the premises, the occupant must be named as a party in the foreclosure proceedings. Douglas v. Kohart, 196 App.Div.84 (2nd Dept. 1921); and Krotchta v. Green, 121 Misc 2d 471 (Yonkers City Ct. 1983). If an occupant or tenant in the premises is not named as a party in the foreclosure action, the occupant or tenants rights are not affected by the judgment of foreclosure and sale. Polish National Alliance of Brooklyn, U.S.A. v. White Eagle Hall Co., Inc., 98 AD2d 400 (2nd Dept. 1983); and Empire Savings Bank v. The Tower Co., 54 AD2d 574 (2nd Dept. 1976). 17. "The absence of a necessary party in a foreclosure action leaves the party's rights unaffected by the judgment and sale, and the foreclosure sale may be considered void as to the omitted party (citations omitted)." 6820 Ridge Realty, L.L.C v. Goldman, 263 AD2d 22, 26 (2nd Dept. 1999). See, Si Bank & Trust v. Sheriff of the City of New York, 300 AD2d 667 (2nd Dept. 2000). Thus, a tenant or occupant who was not named as a party in the foreclosure action retains his or her possessory rights and a right of redemption. Id.; and Davis v. Cole, 193 Misc 2d 380 (Sup. Ct. NY Co. 2002). 18. In the case at bar, Non-party Defendants were not even tenants at the time that the Plaintiff commenced the action, or when they obtained the Judgment of Foreclosure and Sale. Indeed, the Non-party Defendants were not tenants until after the Plaintiff obtained the fee simple interest in the Property.

12 19. However, the Non-party Defendants were tenants prior to the August 21, 2014 filing of the Plaintiff s Motion for a Writ of Assistance and as such should have been named in the motion and served with the motion. "Due process requires that one be given notice and an opportunity to be heard before one's interest in property may be adversely affected by judicial process. Enforcement of the writ of assistance against one who was not joined as a party to the proceeding would violate due process (citations omitted)." [emphasis added] Nationwide Assocs, Inc. v. Brunne, 216 AD2d 547 (2nd Dept. 1995); and Si Bank & Trust v. Sheriff of the City of New York, supra. 20. Here, Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes and Persio Reyes were not joined as parties to the action. They were not named or served in the proceeding which resulted in the issuance of the order of possession, namely the motion for Writ of Assistance. 21. It does not even appear from the record that the Plaintiff took the prudent and cautionary step of attempting to serve "Jane Doe" and/or "John Doe" with their Motion for Writ of Assistance. In any event, the designation and service upon "Jane Doe" and "John Doe" would not have been a suitable remedy to this defect. CPLR 1024 permits a plaintiff to proceed against an unknown defendant. However, before naming a party as a "John or Jane Doe," the plaintiff must establish that it has made a genuine effort to ascertain the name of the party but has been unable to do so. See, Tucker v. Lorieo, 291 AD2d 261 (1st Dept. 2002); and Porter v. Kingsbrook OB/GYN Associates, P.C., 209 AD2d 497 (2nd Dept. 1994). If the plaintiff knew or could have discovered the actual names of the parties named as "John or Jane Doe" with the exercise of due diligence, then a summons naming such parties as unknowns is jurisdictionally defective. See, ABCKO Industries, Inc. v. Lennon, 52 AD2d 435 (1st Dept. 1976).

13 22. In the case at bar the Plaintiff hastily brought their Motion for Writ of Assistance without ascertaining through due diligence whether or not there were tenants on the 1 st Floor or 2 nd Floor. Indeed, had they bothered to knock on the door as the NYC Sheriff did, they would have found that these floors were occupied. See Defendants affidavits averring that the Sheriff simply knocked on the door and served them with the Eviction Notice. 23. In the case at bar Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes and Persio Reyes have averred that they have resided at the premises prior to this Court s issuance of the Amended Order of Eviction. The Non-party Defendants have averred that they have been paying rent to Nando Perez continuously since they moved in on March 1, 2014 and June 1, 2014 respectively. PLAINTIFF S CHOICE OF REMEDY 24. Here, Plaintiff chose to seek an expedited eviction through the Supreme Court with a writ of assistance rather than through the New York City Housing Court. This fact should not prejudice the Non-party Defendants rights under the law. Indeed, one of the major parameters in the NYC Housing Court is insuring compliance with rules that govern service of process. 25. If Plaintiff sought to remove the Non-party Defendants for non-payment of rent they could have utilized the Service of a Written Rent Demand. A rent demand must inform the tenant of the period for which the rent was due, and the approximate, good-faith amount of rent owed for such period. Brusco v. Miller, 167 Misc.2d 55, 639 N.Y.S.2d 246 (AT, 1st Dep't 1995) 26. If Plaintiff sought to remove the Non-party Defendants for a holdover they could have utilized the Service of a Written Thirty Day Predicate Notice pursuant to Real Property Law 232-a or Real Property Law 232-c. The relevant provision of 232-a for notice to terminate a holdover tenant, states that "[n]o monthly tenant, or tenant from month to month,

14 shall hereafter be removed from any lands or buildings unless at least thirty days before the expiration of the term the landlord or his agent serve upon the tenant, in the same manner in which a notice of petition in summary proceedings is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy" (emphasis added). First Natl. Bank of Chicago v Silver,73 A.D.3d 162, 168,899 N.Y.S.2d 256, 260,2010 N.Y. App. Div. LEXIS 2565, 11,2010 NY Slip Op 2511, 4(N.Y. App. Div. 2d Dep't2010) 27. If Plaintiff sought to remove the Non-party Defendants as squatters they could have utilized the Service of a 10 Day Notice to Quit pursuant to CPLR 713(3). 28. Here, had the Plaintiff served any of these notices upon the known and unknown occupants of the property, they would have gained jurisdiction over the Non-party Defendants or at least demonstrated their due diligence in attempting to do so. Instead, Plaintiff chose the remedy of making application to this Court for a Writ of Assistance against the named Defendant s Nanado Perez and Julliza Perez, and came before this Court upon information and belief, as of the date of this affirmation, the former owner occupies the basement floor and the first and second floors are vacant. [emphasis added] See Affirmation of Marcus Cheung, Esq. annexed hereto as Exhibit C PLAINTIFF S REMEDY CANNOT INCLUDE EVICTION BY WRIT OF ASSISTANCE 29. The Non-party Defendants possession of the Property cannot be displaced by way of a writ of assistance order issued by the court pursuant to RPAPL 221 because Non-party Defendants were never named as a defendants in the action. Thus, use of some other lawful means of bringing Non-party Defendants possession of the mortgaged premises to an end is required. Nomura Home Equity Loan Inc. v. Vacchio, 2008 NY Slip Op 28307, 1,21 Misc. 3d 333, 334,864 N.Y.S.2d 834, 835,2008 N.Y. Misc. LEXIS 5029, 1(N.Y. Sup. Ct.2008)

15 30. In Nomura, the court found that the tenancy of the proposed intervenor was by virtue of its having been created after the filing of the notice of pendency, subordinate to the lien of plaintiff's mortgage and was, thus, extinguished by the foreclosure. However, the motion to vacate the order of possession as to the proposed intervenor was granted. Nomura Home Equity Loan Inc. v. Vacchio, 2008 NY Slip Op 28307, 1,21 Misc. 3d 333, 334,864 N.Y.S.2d 834, 835,2008 N.Y. Misc. LEXIS 5029, 1(N.Y. Sup. Ct.2008) 31. Here, as in Nomura, the Non-party Defendants tenancy was created after the foreclosure was completed. Thus, as in Nomura, the Plaintiff s remedies lie under RPAPL which provides that a special proceeding may be maintained where no landlord tenant relationship exists upon the grounds that the property has been sold in foreclosure. Nomura Home Equity Loan Inc. v. Vacchio, supra. 32. This Court cannot entertain any motion by the Plaintiff to remove the Non-party Defendants because as the Court explained in Nomura, RPAPL 221, which authorizes the court to issue an order of possession, by its terms may only be employed to oust a party (or his representative or successor) who is bound by the judgment. To the extent that the order issued here applies to persons such as the proposed intervenor in possession who are not named defendants, the order is vacated. (See Tri-Land Props. v 115 W. 28th St. Corp., 267 AD2d 142, 701 NYS2d 16 [1st Dept 1999]; County Fed. Sav. & Loan Assn. v First Pa. Realty Corp., 29 AD2d 675, 287 NYS2d 614 [2d Dept 1968], affd 23 NY2d 680, 243 NE2d 149, 295 NYS2d 931 [1968]; Gibbs v Kinsey, 170 AD2d 1049, 566 NYS2d 117 [4th Dept 1991] ; cf. Citibank N.A. v Plagakis, 21 AD3d 393, 800 NYS2d 192 [2d Dept 2005].) Nomura Home Equity Loan Inc. v. Vacchio, 2008 NY Slip Op 28307, 3,21 Misc. 3d 333, 337,864 N.Y.S.2d 834, 837,2008 N.Y. Misc. LEXIS 5029, 6-7(N.Y. Sup. Ct.2008) 33. Ultimately, the Court in Nomura, vacated the order of possession as to the Non-party Defendants and directed the Plaintiff to seek its remedy under RPAPL 713(5).

16 34. Under a holdover proceeding, the Plaintiff in this action would be subject to the predicate 30 Day Notice requirement which would ultimately result in the victims here, the Non-party Defendants being given a 60 to 120 day window to save the monies otherwise allocated for rent, so that they could apply those funds to pay 1 st month, last month and security deposit to anew landlord. CONCLUSION 35. In the case at bar the Non-party Defendants come before this Court seeking equity in an inequitable situation where they relied on their reasonable belief that Nando Perez was the owner of the Property and paid him rents from March of 2014 up to and through September of The Non-party Defendants need time to save money to find a new place to live as a result of Defendant Nando Perez s illegal scheme to collect rents from them for a property he did not own. It is proposed that this Court grant Non-party Defendants 6 months time to do so, without the burden of having to pay rent to the Plaintiff. 36. Non-party Defendants are entitled to due process, but were deprived of such because of the Plaintiff s mistaken attempt to evict all occupants without proper service of process and the incorrect application of RPAPL 221 as a means of evicting persons who are not and were not a party to the action. 37. In light of the foregoing, and in keeping with the Court s decision in Nomura, Plaintiff in the case at bar must determine its relationship to the Non-party Defendants and bring an action under the proper section of the law, which Non-party Defendants maintain is RPAPL 713, with all of the predicate notices and protections afforded by said statute. WHEREFORE, Non-Party Defendants, Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children, respectfully requests that this Court issue an order granting:

17 (a) A Temporary Restraining Order, pending a decision on this motion for a Preliminary Injunction, restraining the Plaintiff, EMIGRANT BANK and their successor and or assigns, and specifically, Retained Realty, Inc., from conducting an eviction of Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children (hereinafter collectively referred to as Non-party Defendants ), from the 1 st Floor and 2 nd Floor of the Property, pursuant to this Court s amended order dated September 11, 2014 and an undated Sheriffs Notice which was served upon the Non-party Defendants on or about Friday October 3, 2014, as the Court lacks personal jurisdiction over the Non-party Defendants who have never appeared in this action, were never served with the Plaintiff s Motion seeking a writ of assistance or this Court s subsequent amended Order of Eviction, and will be irreparably harmed if the eviction is not stayed; and; and (b) A Temporary Restraining Order, pending a decision on this motion for a Preliminary Injunction, restraining the Plaintiff, EMIGRANT BANK and their successor and or assigns, and specifically, Retained Realty, Inc., from scheduling any further evictions of the Nonparty Defendants from the Property, while the Court is deliberating on the Non-party Defendants, instant order to show cause; and (c) Vacating this Court s order of eviction as it pertains to the 1 st Floor and 2 nd Floor of the Property known as and located at rd Street, East Elmhurst, NY and the tenancy of Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children; and (d) Vacating the Five-Day Eviction Notice issued by the NYC Sheriff as to Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children; and (e) Directing Plaintiff to pursue eviction of the Non-party Defendant s in the New York City Housing Court; or in the alternative

18 (f) Allowing the Non-party Defendants to remain in the Property for six (6) month s while looking for a new place to live; and (g) Attorney s fees and costs associated with this motion; and (h) Such other and further relief as this Court may deem just, proper or equitable. Dated: October 8, 2014 Queens, N.Y. Brian McCaffrey Attorney at Law, P.C. Brian McCaffrey, Esq. Attorneys for Defendant Sutphin Blvd., 1 st Floor Jamaica, NY Ph: (718) Fax: (718)

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28 At an I.A.S. Part of the Supreme Court, held in and for the County of Queens at the Courthouse thereof on the day of, 2014 Present: Hon. Duane A. Hart, Justice. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS X EMIGRANT BANK, -against- Plaintiff, JULLIZA PEREZ A/K/A JULLIZA PEREZ SOLIS; NYC PARKING VIOLATIONS BUREAU; NYC ENVIRONMENTAL CONTROL BOARD; NANDO PEREZ; DEPARTMENT OF PRESERVATION & DEVELOPMENT; FOODNATION INC.; DONNA CHIARMONTE; PATRICIA CHIARMONTE; MELISSA CHIARMONTE, Index No: 26887/2009 EMERGENCY ORDER TO SHOW CAUSE with T.R.O Justice Assigned: Hon. Duane A. Hart Defendants X Upon the affirmation of Brian McCaffrey, Esq. of Brian McCaffrey, P.C., and upon all prior papers and proceedings in this action, it is hereby ORDERED, that the Plaintiff show cause before this Court, at IAS Part Rm., to be held at the courthouse located at Sutphin Boulevard, Jamaica, New York, on the day of 2014 at A.M. / P.M of that day, or as soon thereafter as counsel can be heard, why an order affecting the unnamed Non-party Defendants possessory right s in the property located at rd Street, 1 st Floor and 2 nd Floor, East Elmhurst, NY (hereinafter the Property ), should not be entered in this action granting; (a) A Temporary Restraining Order, pending a decision on this motion for a Preliminary Injunction, restraining the Plaintiff, EMIGRANT BANK and their successor and or assigns, and specifically, Retained Realty, Inc., from conducting an eviction of Jose Fernando

29 Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children (hereinafter collectively referred to as Non-party Defendants ), from the 1st Floor and 2nd Floor of the Property, pursuant to this Court s amended order dated September 11, 2014 and an undated Sheriffs Notice which was served upon the Non-party Defendants on or about Friday October 3, 2014, as the Court lacks personal jurisdiction over the Non-party Defendants who have never appeared in this action, were never served with the Plaintiff s Motion seeking a writ of assistance or this Court s subsequent amended Order of Eviction, and will be irreparably harmed if the eviction is not stayed; and; and (b) A Temporary Restraining Order, pending a decision on this motion for a Preliminary Injunction, restraining the Plaintiff, EMIGRANT BANK and their successor and or assigns, and specifically, Retained Realty, Inc., from scheduling any further evictions of the Nonparty Defendants from the Property, while the Court is deliberating on the Non-party Defendants, instant order to show cause; and (c) Vacating this Court s order of eviction as it pertains to the 1st Floor and 2nd Floor of the Property known as and located at rd Street, East Elmhurst, NY and the tenancy of Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children; and (d) Vacating the Five-Day Eviction Notice issued by the NYC Sheriff as to Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children; and (e) Directing Plaintiff to pursue eviction of the Non-party Defendant s in the New York City Housing Court; or in the alternative (f) Allowing the Non-party Defendants to remain in the Property for six (6) month s while looking for a new place to live; and (g) Attorney s fees and costs associated with this motion; and

30 (h) Such other and further relief as this Court may deem just, proper or equitable. THEREFORE, sufficient reason appearing it is; ORDERED, that Plaintiff, EMIGRANT BANK and their successor and or assigns, and specifically, Retained Realty, Inc., is stayed from conducting an eviction of Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children (hereinafter collectively referred to as Non-party Defendant s ), from the 1 st Floor and 2 nd Floor of the Property known as and located at rd Street, 1 st Floor and 2 nd Floor, East Elmhurst, NY pending a determination on this order to show cause. ORDERED, that Plaintiff, EMIGRANT BANK and their successor and or assigns, and specifically, Retained Realty, Inc., is stayed from scheduling any further evictions of Jose Fernando Mendosa, Norma Rios, Sandra Rios, Sarah Reyes, Persio Reyes and their minor children (hereinafter collectively referred to as Non-party Defendant s ), from the 1 st Floor and 2 nd Floor of the Property known as and located at rd Street, 1 st Floor and 2 nd Floor, East Elmhurst, NY pending a determination on this order to show cause. ORDERED, that this order does not stay the eviction of all occupants of the Basement of the Property known as and located at rd Street, East Elmhurst, NY and that the Order of Possession is in full force and effect as to all occupants of the Basement of said property. ORDERED, that a copy of this order and of the papers on which it is based, by overnight express delivery on or before, 2014, to the Plaintiff s attorney, Stagg, Terenzi, Confusione & Wabnik, LLP, 401 Franklin Avenue, Suite 300, Garden City, NY 11530, be deemed sufficient service thereof. Dated: County: Queens, N.Y. Entered: J.S.C.

31 INDEX NO /2009 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS X EMIGRANT BANK, Plaintiff, -against- JULLIZA PEREZ A/K/A JULLIZA PEREZ SOLIS; NYC PARKING VIOLATIONS BUREAU; NYC ENVIRONMENTAL CONTROL BOARD; NANDO PEREZ; DEPARTMENT OF PRESERVATION & DEVELOPMENT; FOODNATION INC.; DONNA CHIARMONTE; PATRICIA CHIARMONTE; MELISSA CHIARMONTE, Defendants X EMERGENCY ORDER TO SHOW CAUSE with TRO Pursuant to 22 NYCRR the undersigned, an attorney duly admitted to practice in the courts of the State of New York, certifies that, upon information and belief and reasonable inquiry the contention(s) contained in the annexed document are not frivolous. Dated: Queens, New York October 8, 2014 Brian McCaffrey, Attorney at Law, P.C Sutphin Blvd. (1 st Fl.) Jamaica, N.Y PH: (718)