| Egloff v Town of Lewisboro |
| 2011 NY Slip Op 08116 [89 AD3d 792] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Richard M. Egloff, Respondent, v Town of Lewisboro etal., Appellants, et al., Respondent. |
—[*1] Legal Services of the Hudson Valley, White Plains, N.Y. (Trevor S. Eisenman of counsel),for plaintiff/petitioner-respondent.
In a hybrid action, inter alia, to enjoin the defendants/respondents from evicting theplaintiff/petitioner from the subject property, and proceeding pursuant to CPLR article 78, ineffect, to compel the Town of Lewisboro and Joann Vasi, Enforcing Officer of the Town ofLewisboro, to set aside the transfer of a deed to real property previously owned by theplaintiff/petitioner, the Town of Lewisboro and Joann Vasi, Enforcing Officer of the Town ofLewisboro, appeal, as limited by their brief, from so much of an order of the Supreme Court,Westchester County (Loehr, J.), dated October 19, 2009, as, sua sponte, conditionally vacated afinal judgment of foreclosure with respect to the subject property entered in a separateproceeding, awarded possession of the subject real property to the plaintiff/petitioner, anddirected the execution of a deed conveying the subject property to the plaintiff/petitioner.
Ordered that on the Court's own motion, the notice of appeal is treated as an application forleave to appeal, and leave to appeal is granted (see CPLR 5701); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, without costs ordisbursements.
In a prior proceeding entitled In the Matter of the Foreclosure of Tax Liens by [*2]Proceeding in Rem Pursuant to Article Eleven of the Real PropertyTax Law, Chapter 602, Laws of 1993 by the Town of Lewisboro in the Year 2005,commenced under Westchester County index No. 9674/05, the Town of Lewisboro was awardeda final judgment of foreclosure, upon default, of a tax lien with respect to real propertypreviously owned by the plaintiff/petitioner (hereinafter the plaintiff). The final judgment offoreclosure further awarded the Town possession of the subject property, and directed theexecution and recording of a deed conveying the subject property to the Town.
The plaintiff subsequently commenced the instant hybrid action, inter alia, to enjoin, amongothers, the Town and Joann Vasi, Enforcing Officer of the Town (hereinafter together the towndefendants), from evicting him from the subject property, and proceeding pursuant to CPLRarticle 78, in effect, to compel the town defendants to set aside the transfer of the deed to thesubject property. The plaintiff then moved, by order to show cause, for the appointment of aguardian ad litem, and to preliminarily enjoin the Town from evicting him. After a hearing onthat motion, the Supreme Court, in effect, granted that branch of the motion which soughtappointment of a guardian ad litem. Further, the Supreme Court, sua sponte, conditionallyvacated the final judgment of foreclosure entered in the prior proceeding, awarded the plaintiffpossession of the property, and directed the Town to execute a deed conveying the property to theplaintiff.
The Town correctly contends that the Supreme Court erred in conditionally vacating the finaljudgment of foreclosure entered in a separate proceeding. Any such relief must be obtained bymotion filed in that proceeding (see CPLR 5015 [a]; see generally Matter of Adelson, 84 AD3d 952 [2011]; State ofNew York v Kama, 267 AD2d 225 [1999]). In light of our determination, the remainingportions of the order which are before us on appeal cannot be upheld, as they were predicatedupon the vacatur of the final judgment of foreclosure. Skelos, J.P., Balkin, Leventhal and Lott,JJ., concur.