18, 2013. Petitioner's agent alleged that said notice remained posted on the door to the
Subject Premises through and including July 26, 2013, when the warrant was executed.
A second photograph showing both notices on the door to the Subject Premises, and
alleged to have been taken on July 26, 2013, is also attached to the opposition papers.
DISCUSSION
The parties papers primarily focus on whether the Marshal's notice was
properly served and whether Respondent had received the notice prior to the execution of
the warrant. However, while Respondent's allegation of improper service of the notice of
eviction by the Marshal may give rise to liability against the Marshal if established, it
does not effect the validity of the judgment, nor does it render invalid the execution of
the warrant as to Petitioner in this proceeding (Presidential Management Co. v Farley
78 Misc 2d 610; Graham v Moore 10 Misc 3d 133(A)). Therefore, the court
finds that there is no need to conduct to a hearing to determine if the Marshal properly
served the notice of eviction. The real issue remains what relief, if any, [*3]is Respondent pending appeal of this court's June 12, 2013
decision.
Petitioner argues that any appeal of this court's decision after trial has been
rendered moot by the execution of the warrant. The court disagrees. The cases relied
upon by Petitioner are not applicable to the case at bar. For example, in Michalak v
Fechtel 27 Misc 3d 140(A) the Respondent had consented to entry of a judgment and
therefore had waived the right to appeal.
It is well settled that the Civil Court may, in appropriate circumstances,
restore a tenant to possession, after execution of the warrant (Brusco v Braun 84
NY2d 674,682). A determination as to whether good cause exists to restore a tenant to