Gibbs v. Kinsey

Appellate Division of the Supreme Court of New York

Gibbs v. Kinsey

170 A.D.2d 1049, 566 N.Y.S.2d 117, 1991 N.Y. App. Div. LEXIS 1931

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 1, 1991

StatusPublished

Cited by9 cases

This text of 170 A.D.2d 1049 (Gibbs v. Kinsey) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gibbs v. Kinsey, 170 A.D.2d 1049, 566 N.Y.S.2d 117, 1991 N.Y. App. Div. LEXIS 1931 (N.Y. Ct. App. 1991).

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Opinion

Order unanimously affirmed without costs. Memorandum: Due process requires that one be given notice and an opportunity to be heard before one’s interest in property may be adversely affected by judicial process. Here, the relief sought by Kinsey would violate that rule insofar as he seeks to enforce the writ of assistance against Bey, who was not joined as a party to the proceeding (see, County Fed. Sav. & Loan Assn, v First Pa. Realty Corp., 29 AD2d 675, affd 23 NY2d 680). Even if Bey has no legitimate interest in the property, Kinsey cannot evict her without commencing an eviction action or a summary holdover proceeding against her (see, RPAPL 631, 635, 641, 713 [3]; 721 [6]; see generally, 13 CarmodyWait 2d, NY Prac §§ 89:46, 89:48, 89:98; 14 CarmodyWait 2d, NY Prac §§ 90:149, 90:298). Thus, the court properly vacated the writ of assistance on the motion of Bey, who was not served in the action. (Appeal from Order of Supreme Court, Kings County, Levine, J.—Motion To Vacate.) Present —Denman, J. P., Green, Balio, Davis and Lowery, JJ.

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Order unanimously affirmed without costs. Memorandum: Due process requires that one be given notice and an opportunity to be heard before one’s interest in property may be adversely affected by judicial process. Here, the relief sought by Kinsey would violate that rule insofar as he seeks to enforce the writ of assistance against Bey, who was not joined as a party to the proceeding (see, County Fed. Sav. & Loan Assn, v First Pa. Realty Corp., 29 AD2d 675, affd 23 NY2d 680). Even if Bey has no legitimate interest in the property, Kinsey cannot evict her without commencing an eviction action or a summary holdover proceeding against her (see, RPAPL 631, 635, 641, 713 [3]; 721 [6]; see generally, 13 CarmodyWait 2d, NY Prac §§ 89:46, 89:48, 89:98; 14 CarmodyWait 2d, NY Prac §§ 90:149, 90:298). Thus, the court properly vacated the writ of assistance on the motion of Bey, who was not served in the action. (Appeal from Order of Supreme Court, Kings County, Levine, J.—Motion To Vacate.) Present —Denman, J. P., Green, Balio, Davis and Lowery, JJ.

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Bluebook (online)

170 A.D.2d 1049, 566 N.Y.S.2d 117, 1991 N.Y. App. Div. LEXIS 1931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibbs-v-kinsey-nyappdiv-1991.

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