Opinion
July 7, 1988
Present — Callahan, J.P., Doerr, Denman, Boomer and Davis, JJ. (Order entered June 30, 1988.)
Motion for stay denied. Memorandum: Respondents, Robert and Delores Acker, have appealed from an order of Erie County Court that granted petitioner, Thomas Yox, a writ of assistance pursuant to RPAPL 221, and are presently seeking a stay of the order pending the determination of the appeal.
Respondents' claim on appeal is that County Court lacked jurisdiction to hear petitioner's motion. Respondents' attorney, by refusing to articulate the basis for this jurisdictional objection before County Court, despite repeated requests by the Judge to do so, has failed to provide this court with a sufficient record, making review of respondents' jurisdictional contention an impossibility. Moreover, were we to reach the merits of respondents' jurisdictional objection, we would affirm. A motion pursuant to RPAPL 221 may be brought under the caption of the foreclosure action (see, Lincoln First Bank v. Polishuk, 86 A.D.2d 652); therefore, service of the motion papers on respondents' attorney of record was sufficient (CPLR 2103 [b] [3]). Respondents' attorney's present claim that he is not the attorney of record, but was appearing only to contest the court's jurisdiction, is directly contradicted by his affidavit of several weeks earlier, submitted to the Presiding Justice of this court concerning this same case, wherein he affirmed that he was the "attorney of record" for respondents.
Respondents' motion for a stay is denied.