Summary
vacating writ of assistance issued against individual who was not joined as party to proceeding; "[e]ven if [individual] has no legitimate interest in the property, [party] cannot evict her without commencing an eviction action or a summary holdover proceeding against her"
Summary of this case from U.S. v. Real Prop. Premises Known as 63-39Opinion
February 1, 1991
Appeal from the Supreme Court, Kings County, Levine, J.
Present — Denman, J.P., Green, Balio, Davis and Lowery, JJ.
Order unanimously affirmed without costs. Memorandum: 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. Here, the relief sought by Kinsey would violate that rule insofar as he seeks to enforce the writ of assistance against Bey, who was not joined as a party to the proceeding (see, County Fed. Sav. Loan Assn. v First Pa. Realty Corp., 29 A.D.2d 675, affd 23 N.Y.2d 680). Even if Bey has no legitimate interest in the property, Kinsey cannot evict her without commencing an eviction action or a summary holdover proceeding against her (see, RPAPL 631, 635, 641, 713; 721 [6]; see generally, 13 Carmody-Wait 2d, N Y Prac §§ 89:46, 89:48, 89:98; 14 Carmody-Wait 2d, N Y Prac §§ 90:149, 90:298). Thus, the court properly vacated the writ of assistance on the motion of Bey, who was not served in the action.