Sweet v. Sanella

46 A.D.2d 688, 360 N.Y.S.2d 261, 1974 N.Y. App. Div. LEXIS 3814

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 1974
• Status: Published

Opinion

In a proceeding pursuant to article 78 of the CPLR to compel the appellant Deputy Marshal to re-execute a warrant for eviction of tenants, Sylvia and Cynthia Mac Leay, the appeals are (1) from so much of a judgment of the Supreme Court, Nassau County, dated January 18, 1974, as directed him, upon payment of his proper fees and expenses, to re-execute the warrant and re-evict the tenants and to place petitioner in full possession of the premises and (2) as limited by his brief, from so much of an order of the same court, dated March 18, 1974, as, after granting reargument to tenant Sylvia Mac Leay, adhered to the original determination. Judgment and order reversed insofar as appealed from, without costs, and proceeding dismissed on the merits. Once a warrant of eviction has been executed, the tenant evicted and the landlord placed in possession, the summary proceeding is terminated. If the tenant as a trespasser thereafter re-enters into possession of the premises, the Marshal cannot re-execute the warrant of eviction and re-evict him. Martuscello, Acting P. J., Shapiro, Christ, Benjamin and Munder, JJ., concur.