<partyblock><br><br><div align="center"><b><font size="+1">BH 2628, LLC, Appellant,<br><br>against<br><br>Zully's Bubbles Laundromat, Inc., Respondent, et al., Undertenants.</font></b></div><br><br><p>Stern &amp; Stern, Esqs. (Pamela Smith, Esq.), for appellant.Castro Law, PLLC (John C. Castro, Esq.), for respondent.</p><p>Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered June 17, 2014. The final judgment, after a nonjury trial, dismissed the petition in a summary proceeding brought pursuant to RPAPL 713 (5).</p><p>ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment awarding possession to petitioner. </p><p>In this summary proceeding commenced pursuant to RPAPL 713 (5) by a purchaser in foreclosure, petitioner appeals from a final judgment which, after a nonjury trial, dismissed the petition. The Civil Court found that landlord had failed to prove its case, as occupant had a valid lease and had not been named in the foreclosure action. The court held, accordingly, that occupant was not bound by the judgment of foreclosure. </p><p>As the lease with the former owner upon which occupant's defense to this proceeding is based was signed several months after a notice of pendency had been filed in connection with the foreclosure action, occupant was, contrary to the Civil Court's holding, bound by the judgment of foreclosure (<i>see</i> CPLR 6501) and the lease was voidable by petitioner following its purchase in foreclosure (<i>see id.</i>;<i> West 56th &amp; 57th St. Corp. v Pearl</i>, 242 AD2d 508 [1997]). Petitioner demonstrated that it had served a notice voiding the lease (<i>see Matter of Fresh Meadows Jewish Ctr. [Gordon]</i>, 75 AD2d 814, 815 [1980]).</p><p>RPAPL 713 (5) allows for a special proceeding to be maintained after service of a 10-day <font color="FF0000">[*2]</font>notice to quit where "the property has been sold in foreclosure and either the deed delivered pursuant to such sale, or a copy of such deed, certified as provided in the civil practice law and rules, has been exhibited to" the respondent. Since, here, the lease was voided, not terminated, no landlord-tenant relationship ever existed between the parties. Thus, a proceeding pursuant to RPAPL 713 (5), not a holdover proceeding (RPAPL 711 [1]), was the appropriate proceeding for petitioner, a purchaser in foreclosure, to commence against occupant. As petitioner demonstrated that it had voided the lease; that it had exhibited the referee's deed to occupant's principal; that it had served a 10-day notice to quit; and that occupant had remained in possession of the subject property after the expiration of the 10-day period, petitioner is entitled to a final judgment of possession.</p><p>Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for the entry of a final judgment awarding possession to petitioner.</p><p>ELLIOT, J.P., PESCE and SOLOMON, JJ., concur.</p><br>ENTER:<br>Paul Kenny<br>Chief Clerk<br>Decision Date: September 29, 2017<br><br><div align="center"><form method="LINK" action="../../slipidx/at_2_idxtable.shtml"><input type="submit" value="Return to Decision List"></form></div></partyblock>