Wilmington Sav. Fund Socy., FSB v McFarlane

Civil Court of the City of New York, Queens County

Decided on April 27, 2026

Index No. L&T 307353/25

Clinton J. Guthrie, J.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of the motion by Rajendra Jagnanan to be substituted as petitioner and for use and occupancy pendente lite (seq. 3):

[*2]Papers Numbered

Notice of Motion & All Documents Annexed 1 (NYSCEF #31-43)

Affirmations in Opposition (Delon D Blackman) 2 (NYSCEF #46)

Affirmations in Opposition (Barbara Blackman) 3 (NYSCEF #48-49)

Upon the foregoing cited papers, the decision and order on Rajendra Jagnanan's motion is as follows.

PROCEDURAL HISTORY

This summary "post-foreclosure" holdover proceeding brought pursuant to RPAPL § 713(5) was filed in May 2025. In August 2025, counsel appeared for respondent Barbara Blackman. An answer was interposed for Barbara Blackman in October 2025. Subsequently, in February 2026, respondent Delon B Blackman appeared through separate counsel. An answer was filed, though potentially errantly on behalf of "Devon Blackman."

Now, a purported new owner for the subject property, Rajendra Jagnanan, through counsel, has moved to be substituted for petitioner and for use and occupancy pendente lite. After opposition papers were filed by the respondents who have appeared, this court heard argument on the motion on April 16, 2026.

DISCUSSION & CONCLUSION

I. Motion to Substitute and Amend the Name of Petitioner

Pursuant to CPLR § 1018, "[u]pon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action." Mr. Jagnanan annexes a copy of the deed from petitioner to Mohan Boodhram and Rajendra Jagnanan recorded in the Office of the City Register of the City of New York ("City Register") on September 29, 2025. He also annexes a purported "Assignment of Leases, Causes of Actions, Rents, Rights and Claims, & Interests" with California Jurat dated October 7, 2025. Respondents primarily oppose substitution and amendment on the basis that movant cannot proceed pursuant to RPAPL § 713(5) because he was not the purchaser of the property after foreclosure.

Respondents are correct that to commence an RPAPL § 713(5) proceeding, the petitioner must have purchased the subject property at a foreclosure sale. A "purchaser from a purchaser in foreclosure" cannot commence a proceeding under the statute (Sequoia Partners, LLC v Ali, 67 Misc 3d 133[A], 2020 NY Slip Op 50493[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; see also Castle Peak 2012-1 REO, LLC v New York Found. For Senior Citizens, 63 Misc 3d 157[A], 2019 NY Slip Op 50834[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). However, in a summary proceeding, "the primary rights at issue . . . are the respective rights of the parties to possession, which 'rights are to be determined as they existed at the time the proceedings were commenced.'" (Tzifil Realty Corp. v Mazrekaj, 85 Misc 3d 20, 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025] [Quoting Four Forty-One Holding Corp. v Bloom, 148 Misc 565, 568 [App Term, 1st Dept 1933]; see also Sowalsky v MacDonald Stamp Co., 31 AD2d 582 [3d Dept 1968]).

As petitioner Wilmington alleged in the original petition that it took title of the subject property pursuant to a referee's deed delivered following a foreclosure, it had colorable standing to commence this proceeding. While movant must bear the burden of proof upon the cause of [*3]action that was brought by Wilmington should the case proceed to trial, the court does not find that he is precluded from substituting since Wilmington was the proper petitioner at the time of commencement, which is the time when the rights of the parties are determined (see Mazrekaj, 85 Misc 3d at 23; but cf. Fannie Mae v Goffe, 2026 NYLJ LEXIS 691 [Civ Ct, Kings County, April 9, 2026] [Denying substitution in similar circumstances.]). As the court finds movant's submissions to be adequate to demonstrate a valid basis for substitution, the motion is granted to the extent that Rajendra Jagnanan is hereby substituted as petitioner pursuant to CPLR § 1018 and all pleadings and caption shall be amended accordingly.

II. Motion for Use and Occupancy Pendente Lite

Movant also seeks an order requiring the payment of use and occupancy pendente lite. Movant annexes certain real estate broker letters regarding the alleged reasonable value of use and occupancy for the subject premises. Respondents oppose the motion in all respects.

Use and occupancy pendente lite may only be ordered upon:

"[T]he second of two adjournments granted solely at the request of the respondent, or upon the sixtieth day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, counting only days attributable to adjournment requests made solely at the request of the respondent and not counting an initial adjournment requested by a respondent unrepresented by counsel for the purpose of securing counsel, whichever occurs sooner . . . upon consideration of the equities[.]" (RPAPL § 745(2)(a)).

An adjournment on consent is not countable for RPAPL § 745 purposes (Myrtle Venture Five, LLC v Eye Care Opt. of NY, Inc., 48 Misc 3d 4, 6 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; 1747 Assoc., LLC v Raimova, 56 Misc 3d 1216[A], 2017 NY Slip Op 51040[U] [Civ Ct, Kings County 2017]). Here, upon a review of the court file, the court does not find that either 60 days or two (2) adjournments (exclusive of an initial adjournment to obtain counsel) "made solely at the request of the respondent[s]" (RPAPL § 745(2)(a)) have accrued or occurred. Thus, movant's motion for use and occupancy is denied without the court reaching respondents' claims regarding an alleged breach of the warranty of habitability. The denial is without prejudice.

III. Conclusion

According to the foregoing determinations, Rajendra Jagnanan's motion to be substituted as petitioner and to amend the pleadings and caption accordingly is granted and the motion for use and occupancy pendente lite is denied without prejudice. The proceeding will be restored for all purposes, including trial transfer, in Part SPP on May 26, 2026 at 9:30 AM.

This Decision/Order will be filed to NYSCEF.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Dated: April 27, 2026

Queens, New York

HON. CLINTON J. GUTHRIE, J.H.C.