While a writ of assistance may be issued evicting Springer and Bernard from the property, a writ cannot be issued terminating the occupancy of Lecreta Springer, Cherryann Dalrymple or her son.

Lecreta Springer, Cherryann Dalrymple and her son were not named or served as parties in the foreclosure action.

In order to cut off the interest of an occupant of the premises, the occupant must be named as a party in the foreclosure proceedings. Douglas v. Kohart, 196 App.Div.84 (2nd Dept. 1921); and Krotchta v. Green, 121 Misc 2d 471 (Yonkers City Ct. 1983). If an occupant or tenant in the premises is not named as a party in the foreclosure action, the occupant or tenants rights are not affected by the judgment of foreclosure and sale. Polish National Alliance of Brooklyn, U.S.A. v. White Eagle Hall Co., Inc., 98 AD2d 400 (2nd Dept. 1983); and Empire Savings Bank v. The Tower Co., 54 AD2d 574 (2nd Dept. 1976).

"The absence of a necessary party in a foreclosure action leaves the party's rights unaffected by the judgment and sale, and the foreclosure sale may be considered void as to the omitted party (citations omitted)." 6820 Ridge Realty, L.L.C v. Goldman, 263 AD2d 22, 26 (2nd Dept. 1999). See, Si Bank & Trust v. Sheriff of the City of New York, 300 AD2d 667 (2nd Dept. 2000). Thus a tenant or occupant who was not named as a party in the foreclosure action retains his or her possessory rights and a right of redemption. Id.; and Davis v. Cole, 193 Misc 2d 380 (Sup. Ct. NY Co. 2002).

Where the tenant or occupant's interest in the property were not terminated by the judgment of foreclosure and sale, the purchaser at the foreclosure sale may terminate the tenant or occupant's interest by commencement of a strict foreclosure action pursuant to Real Property Actions and Proceedings Law §1352 or a reforeclosure action pursuant to Real Property Actions and Proceedings Law §1503. Id.

"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. Enforcement of the writ of assistance against one who was not joined as a party to the proceeding would violate due process (citations omitted)." Nationwide Assocs, Inc. v. Brunne, 216 AD2d 547 (2nd Dept. 1995); and Si Bank & Trust v. Sheriff of the City of New York, supra.