Wagman v. Smith

In a proceeding pursuant to RPAPL 713 (10) to obtain possession of real property, the petitioner appeals from an order of the Supreme Court, Rockland County (Meehan, J.), dated September 27, 1988, which dismissed the petition. Ordered that the order is affirmed, with costs. The petitioners formerly owned real property in Monsey, New York. After they defaulted on the mortgage, a judgment of foreclosure was entered against them and they were ordered to vacate the premises. The respondent then purchased the property at a foreclosure sale. The respondent changed the locks on the premises and the petitioner Aaron Wagman was arrested after he objected to the changing of the locks and his exclusion from the premises. The Supreme Court properly dismissed the petition. The respondent could have been better advised to have employed the statutory remedy of a writ of assistance pursuant to RPAPL 221 rather than resorting to the common-law remedy of self-help. Nevertheless, there is no need to restore the petitioner to possession as the respondent would then be entitled to a writ of assistance and possession under RPAPL 221 (see Friends of Yelverton v 163rd St. Improvement Council, 135 Misc 2d 275; Yates v Kaplan, 75 Misc 2d 259). Thompson, J. P., Rubin, Rosenblatt and Miller, JJ., concur.