Upon the following papers read on this motion for stay of eviction; Notice of Motion/ Order to Show Cause and supporting papers granted April 2, 2019; Affirmation In Opposition to Order to Show Cause dated April 12, 2019 and supporting papers; it is,

ORDERED that this order to show cause by defendant Marie-Karoll Joseph for a stay of eviction pending a hearing on newly discovered facts and evidence and lack of service upon defendants is denied; and it is further

ORDERED that any restraining order resulting from execution of this Order to Show Cause including stays related to of the judgment and warrant of eviction issued in the Landlord/Tenant proceeding under Index # LT-041-19/HU are hereby vacated.

This is an action to foreclose a mortgage on real property known as 443 Wolf Hill Road, Dix Hills, Suffolk County, New York ("the property"). Plaintiff Nationstar Mortgage LLC ("plaintiff") commenced the action by filing of the summons and verified complaint on June 5, 2013. Defendant Marie-Karoll Joseph ("defendant") was served pursuant to CPLR 308(2) on July 5, 2013. Defendant's prior counsel filed a notice of appearance dated December 30, 2013. None of the defendants answered the complaint. Plaintiff's unopposed motion for summary judgment and order of reference was granted March 31, 2015 (MacKenzie, J.) (Seq. #001) and judgment of foreclosure and sale granted September 21, 2015 (MacKenzie, J.) (Seq. #002). A notice of sale was entered January 13, 2017 and defendant's filed her first order to show cause (Seq. #003) for preliminary injunction restraining plaintiff from proceeding with the foreclosure sale of the property, and vacating the March 31, 2015 and September 21, 2015 orders. The action was administratively assigned to the general inventory of this part as Justice MacKenzie was no longer available to hear foreclosure actions and defendant's application was denied by order dated March 16, 2018. The foreclosure sale was held on June 6, 2018 and title to the property was sold to plaintiff and subsequently conveyed to TAB Suffolk Acquisitions LLC ("TAB") by Bargain and Sale Deed executed December 3, 2018. TAB commenced a Landlord Tenant holdover proceeding in District Court, Huntington, New York in January 2019. Although defendant made an initial appearance in District Court she did not appear on the two adjourned dates. A purported tenant, Derrick Johnson, appeared, a traverse hearing was held and Johnson entered into a stipulation of settlement with execution of warrant of eviction stayed until March 25, 2019. TAB obtained a default judgment against defendant with the same terms.

Defendant, appearing pro se, brings the present application in the foreclosure action by order to show cause executed April 2, 2019 (Emerson, J.) for a stay of eviction pending a hearing on newly discovered facts and evidence and lack of service upon defendants. The order to show cause granted defendant's application to the extent of restraining plaintiff, for a period of 30 days from the date of the order, from effectuating or continuing the eviction process.

At the outset the court notes defendant is in default and absent a vacatur of her default, which is not requested, she is without authority to seek affirmative relief of a non-jurisdictional nature (see HSBC Mtge. Corp. v Morocho, 106 AD3d 875, [2d Dept 2013]; U.S. Bank Natl. [*2]Assn. v Gonzalez, 99 AD3d 694 [2d Dept 2012]; Deutsche Bank Trust Co., Am. v Stathakis, 90 AD3d 983 [2d Dept 2011]; Holubar v Holubar, 89 AD3d 802 [2d Dept 2011]).

In opposition plaintiff established that the property was transferred to TAB by Bargain and Sale Deed dated December 3, 2018 and that the landlord tenant proceeding was commenced by TAB, therefore the court is in agreement that defendant's requested relief to stay the eviction should be addressed to TAB, not plaintiff in the foreclosure action. Accordingly since TAB, a nonparty to this action, was never served with the order to show cause and supporting papers by which defendant sought relief against them, the court is without authority to award any such relief against TAB (see Dune Deck Owners Corp. V J. J. & P Associates Corp., 85 AD3d 1091 [2d Dept 2011]).

Notwithstanding the foregoing with respect to defendant's application for injunctive relief to enjoin execution of the warrant of eviction in the underlying Landlord Tenant proceeding, the law is clear that to obtain a preliminary injunction, the moving party must establish by clear and convincing evidence; 1) a likelihood of success on the merits; 2) irreparable injury absent injunctive relief; and 3) that the equities balance in his favor (Nobu Next Door, LLC v Fine Arts Housing, Inc., 4 NY3d 839 [2005]; Zoller v HSBC Mortgage Corp (USA), 135 AD3d 932 [2d Dept 2016]; Chase Home Finance, LLC v Cartelli, 140 AD3d 911 [2d Dept 2016]). Defendant has failed to meet her burden and there is no reason to further delay the eviction of tenants remaining on the premises owned by TAB. The defendant has failed to make any showing of a likelihood of success on the merits or to prove that the balancing of the equities weigh in her favor. Any stay imposed as a result of submission of this motion by the defendant is hereby vacated.

The court has considered defendant's remaining arguments and found them to be without merit, or alternatively, addressed by the court in its order of March 16, 2018 denying defendant's prior application for injunctive relief.

Accordingly defendant's motion is denied.

This constitutes the Order and decision of the Court.