Harkirat Bal, a non-party to this summary proceeding, moves by way of an order to show cause, to vacate and set aside the within judgment of possession and warrant of eviction, or in the alternative, for a stay of execution of the warrant of eviction. The petitioner, Harish K. Sethi, opposes the instant motion.

This non-payment proceeding which named Kulwinder Kaur, Nirmal S. Bal, Simarjit S. Bal and "John Doe", was commenced on March 1, 2006. The petitioner sought a judgment of possession and warrant of eviction, a money judgment in the sum of $115,250.00 for rent arrears, attorney's fees, plus costs and disbursements. In particular, the petition and notice of petition sought rent from April 2004 through January 2006.

This matter appeared on the conference calendar several times and on March 28, 2006 the respondents moved for a dismissal of the petition and notice of petition upon several grounds. The petitioner filed opposition with the Court on April 7, 2006. The Court denied the respondents' motion in its entirety, by an order of Hon. Norman Janowitz, dated May 11, 2006.

Thereafter on June 6, 2006 this matter was settled by way of a stipulation of settlement. Both the petitioner and the respondents were represented by counsel. The stipulation provided for the entry of a final judgment of possession and warrant of eviction, execution thereof stayed upon the following terms and conditions. The respondents agreed to pay the petitioner the sum of fifty thousand ($50,000.00) dollars on or before June 13, 2006. The respondents also agreed to pay the petitioner the sum of five thousand ($5,000.00) dollars on or before July 5, 2006 and one hundred fifty thousand ($150,000.00) dollars on or before July 31, 2006. On June 16, 2006 the petitioner filed an affidavit of non-compliance with the Court based upon the respondents' default. On July 6, 2006 a judgment of possession and warrant of eviction along with a money judgment in the sum of $205,000.00 was issued by this Court. (The petition was amended to include rent through June 2006.) Subsequently and before execution of the warrant of eviction, an oral agreement was reached between the parties to stay execution of the warrant in order to allow the respondents more time to satisfy the outstanding money judgment. The respondents failed to honor the oral agreement and on or about December 2006 the petitioner moved this [*2]Court for the re-issuance of the warrant of eviction. On January 8, 2007, the Court issued a second judgment of possession and warrant of eviction in the petitioner's favor. Due to a ministerial error, the signed judgment of possession and warrant of eviction was not received by the petitioner. Consequently, on February 5, 2007 the Court re-issued a third judgment of possession and warrant of eviction along with a money judgment in the petitioner's favor in the sum of $205,000.00.

The Court now has before it an order to show cause from Harkirat Bal, who is the daughter of the named respondents, Nirmal and Simarjit Bal. Ms. Bal alleges that she has resided at the subject premises for over six (6) years and that she is being unlawfully evicted from the premises because (1) she was not a named respondent in this proceeding and (2) she did not sign the stipulation of settlement. Ms. Bal also alleges that she has entered into a contract of sale with the petitioner to purchase the subject premises and is awaiting closing. In essence, Ms. Bal seeks to stay execution of the warrant of eviction until she closes on the property to avoid the immediate removal of her parents and brother from the residence.

RPAPL § 749 authorizes the Court to issue a warrant of eviction commanding the executing officer to "remove all persons" from the premises. Those who are contemplated in the statute as "all persons" and who therefore may be removed without having their day in court, or an opportunity to object to the proceeding, [*3]include the spouse, children, servants, boarders and guests of the tenant (see, Rasch, New York Landlord & Tenant 3 Ed. § 46:10; Fults v. Munro, 202 NY 34, 95 NE 23; Cohen v. 515 Broadway Realty Corp., 150 Misc 288, 269 NYS2 113).

However, in the case at bar, after issuance of the judgment and warrant, petitioner and movant Harkirat Bal entered into a contract of sale dated October 2006, wherein Harkirat Bal agreed to purchase the subject premises for $850,000.00. The closing date provided in the contract is November 20, 2006. Significantly, the contract of sale recognizes Harkirat Bal as a tenant; thus, she could not have been evicted pursuant to RPAPL 749 because her status was that of a tenant, rather than a mere occupant. Paragraph 9 of the rider to the contract of sale states:

The parties hereby acknowledge that they have been advised by their respective Counsel regarding Real Property Law Article 14 and the property condition Disclosure statement relating thereto. The purchaser hereby waives the receipt of the Real Property Disclosure Statement and pursuant to the statute and as the purchasers have been living in the property for a very long time and they were the original owners of the property once and have been there as tenants afterward. No one other the purchasers have been residents of the property in question and wherefore the seller has not responsibility regarding obligatory disclosure etc.

The purchaser hereby releases the seller from any obligation relating to the said disclosure statement.

The Court notes that neither party cites this provision in their moving papers.

The question presented to this Court is what effect, if any, does paragraph 9 of the rider [*4]have on the effort to evict movant? The Court holds that the within proceeding cannot be maintained against Harkirat Bal for two reasons:

1.Petitioner has admitted in the contract of sale movants status as a tenant. Since movant was never served in this proceeding, she cannot be evicted. See, 45th & Broadway Associates v. Skyline Enterprises, 144 Misc 2d 714, 544 NYS2d 975.

2.Summary proceedings may not be invoked against Harkirat Bal because the relationship between petitioner and Harkirat Bal became a vendor-vendee relationship upon the execution of the October 2006 contract. See, Hadlick v. DiGiantommaso, 154 AD2d 338, 545 NYS2d 816, wherein the Second Department stated:

Although "the general rule is that execution of a contract of sale between landlord and tenant serves to merge the landlord-tenant relationship into the vendor-vendee relationship and thus effectively terminates the former," the parties may "deviate from the general rule and . . . avoid a merger" by an express declaration in the agreement to this effect (Barbarita v. Shilling, 111 AD2d 200, 201-202).

To the same effect as the above, are Lind v. Lind, 203 AD2d 696, 610 NYS2d 347, and Barbarita v. Shilling, 111 AD2d 200, 489 NYS2d 86.

The parties did not preserve the landlord-tenant relationship in the contract and thus allow summary proceedings to be employed on this basis.

Based upon the above, the order to show cause is granted and petitioner is stayed from evicting Harkirat Bal. This Court expresses no opinion whether RPAPL § 713(9) may be used by petitioner.

This constitutes the decision and order of the Court.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:April 5, 2007

CC:Sandback, Birnbaum & Michelen

Novick, Edelstein, Lubell, Reisman, Wassermann & Leventhal, P.C.