Opinion
June 26, 1995
Appeal from the Supreme Court, Suffolk County (Werner, J.).
Ordered that the orders are affirmed, with one bill of costs.
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 (see, Gibbs v. Kinsey, 170 A.D.2d 1049, citing County Fed. Sav. Loan Assn. v. First Pa. Realty Corp., 29 A.D.2d 675, affd 23 N.Y.2d 680). Further, it is well settled that "[t]he interest of an occupant of the mortgaged premises who is not served remains unaffected by the foreclosure" (Empire Sav. Bank v. Towers Co., 54 A.D.2d 574; see also, Scharaga v. Schwartzberg, 149 A.D.2d 578, 579; Polish Natl. Alliance v. White Eagle Hall Co., 98 A.D.2d 400, 406; Green Point Sav. Bank v. Defour, 162 Misc.2d 476). We agree with the Supreme Court that Charles Brunne, a tenant in residency pursuant to a lease agreement that predates the notice of pendency, was not joined as a party to the foreclosure action and hence, he is not bound by the judgment. Further, his wife, the defendant Elizabeth Brunne, who also possesses a leasehold interest in the same property, was not properly served with a summons and complaint until after the entry of the final judgment of foreclosure. Another occupant, Elizabeth Hilfiker, was never served with a summons. Therefore, they are unaffected by the foreclosure.
Moreover, under the facts of this case, the Supreme Court did not improvidently exercise its discretion in denying the plaintiffs' motion pursuant to CPLR 1001 (a); 1003, 2001, and 3025 (b), to amend the caption and all pleadings in the action to add Charles Brunne and Elizabeth Hilfiker as party defendants and bind them nunc pro tunc by the judgment of foreclosure. Bracken, J.P., Balletta, Copertino and Hart, JJ., concur.