Opinion
Index No. LT-300755-22/BX
12-18-2023
City of New York, Petitioner(s), v. "John" "Doe"; "Jane" "Doe"; "John" "Doe"; "Jane" "Doe", Respondent(s).
Maurice Dobson, Special Assistant Corporation Counsel, New York City Department of Housing Preservation & Development (Isidore Scipio, of counsel), New York, NY, for petitioner. April Whitehead, Irvington, NY, for respondents Alexander Aqel and Aqel Sheet Metal Inc.
Maurice Dobson, Special Assistant Corporation Counsel, New York City Department of Housing Preservation & Development (Isidore Scipio, of counsel), New York, NY, for petitioner.
April Whitehead, Irvington, NY, for respondents Alexander Aqel and Aqel Sheet Metal Inc.
Jeffrey S. Zellan, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers/Numbered
Order to show Cause/ Notice of Motion and
Affidavits /Affirmations annexed 1
Answering Affidavits/ Affirmations 2
Reply Affidavits/ Affirmations 3
Memoranda of Law
Other - Sur reply 4
Upon the foregoing cited papers, the Decision/Order on the motion is as follows:
In this ejectment action in which petitioner, the City of New York (the "City"), is a property owner of a purportedly vacant lot, the City seeks to eject the apparent occupiers of said lot, Alexander Aqel ("Aqel") and Aqel Sheet Metal Inc. (collectively the "occupiers"). In response to this effort by petitioner, the occupiers have claimed continuous adverse possession of the subject property since 2005 and seek, in the instant motion, an order vacating the default judgment of possession and writ of ejectment and restoring the occupiers to possession, which, as the Court understands it, is the status quo at this time as the materials and equipment owned by the occupiers that have been stored on the lot without the City's consent for some period of time remain on the lot at present.
Although couched as an "eviction" action, and although there was a prior writ of "eviction" from the Court in the matter, it is not disputed that there has never been a lease between the landlord and the occupant(s), and thus the Court refers to the action as seeking "ejectment." However, any reference to eviction is to be deemed interchangeable with ejectment for purposes of this motion.
At the outset, although the Civil Court does not have jurisdiction to hear an action filed by a petitioner seeking a declaratory judgment of adverse possession as this would be an equitable remedy, the Civil Court is permitted to consider adverse possession as a defense in an eviction/ejectment proceeding, as "[t]he issue in a summary proceeding for possession is whether the landlord is entitled to possession, and any legal or equitable defense offered by the tenant to show that the landlord is not entitled to possession must be considered." Baptist Temple Church v. Mann, 194 Misc.2d 498, 501 (Civ. Ct., New York Co. 2002) (emphasis added). This includes a defense based upon what would typically be sought by declaratory judgment in Supreme Court. See, Subkoff v. Broadway-13th Associates, 139 Misc.2d 176, 177 (Sup. Ct., New York Co. 1988).
While the Court is sensitive to the City's desire to repossess the property for the alleged purpose of building affordable housing on the site, the instant motion must be granted and the petition dismissed for lack of jurisdiction as the City commenced this proceeding by defectively serving a defective 10-day notice to quit, followed by defectively serving a defective notice of petition and petition.
Background
In April 1990, the City acquired the lot at issue, which the City describes as "1119 Washington Avenue A/K/A 14 Gouverneur Place-Unimproved Land/Lot, Block 2388, Lot 54, Bronx, NY 10456 (All Rooms)." (Petition, ¶¶ 2 and 3; and Petitioner's Inquest Ex. C). The occupiers operate a nearby business with an address of 1135 Washington Avenue. (Aff. of April Whitehead in Supp., ¶ 24).
In January 2022, petitioner commenced this proceeding against pseudonym respondents John Doe and Jane Doe, based upon a 10-day notice to quit (Petition, ¶ 5). According to petitioner, the 10-day notice to quit was served on the pseudonym respondents by 'nail-and-mail' service on what the City alleges was a vacant lot on December 3, 2021. (Aff. of Gary Wollan dated Jan. 10, 2022, ¶ 3; and Affs. of Christopher Massimillo of Service sworn December 6, 2021). No one answered or otherwise responded to the petition, itself also allegedly served upon pseudonym respondents by 'nail-and-mail' service on the same allegedly vacant lot on January 24, 2022. (Affs. of Robert Moore of Service sworn Jan. 27, 2022; Affs. of Hector Pacheco of Service sworn Jan. 27, 2022, and Aff. of Isidore Scipio in Opp., ¶ 8, Ex. C). The Court subsequently held an inquest and granted petitioner a judgment of possession and warrant of eviction by decision and order dated March 2, 2022 (Rivera, J.). On April 4, 2022, petitioner subsequently requisitioned a warrant of eviction, and a marshal sought to execute on that warrant by notice of eviction dated June 23, 2022.
Mr. Massimillo executed separate affidavits of service for service upon John Doe and Jane Doe.
Messrs. Moore and Pacheco executed separate affidavits of service for each of their respective acts of affixing and mailing the petition and accompanying papers.
On July 6, 2022, F. Guzman, on behalf of the Guzman and Heredia families, moved to vacate the default judgment by order to show cause (Motion Seq. No. 001), and sought a temporary stay of enforcement of the judgment (including the warrant of eviction), which the Court (Rivera, J.) granted in signing an order to show cause the same day. On July 7, 2022, Aqel Sheet Metal (by respondent Alexander Aqel) separately moved by order to show cause (Motion Seq. No. 002) to vacate the default judgment and seek a declaratory judgment finding that Aqel Sheet Metal owned the lot through adverse possession that commenced in 2005, which the Court (Powell, J.) signed the same day. (Aff. of Alexander Aqel in Reply). According to Aqel's affidavit, he first learned of the instant proceeding by seeing a notice of eviction posted outside the lot. (Aqel Aff. in Reply, ¶ 6).
Aqel Sheet Metal did not seek a temporary stay pending the determination of Motion Seq. No. 002.
The City opposed, and the Court (Crawford, J.) subsequently denied both motions by decision and order dated August 16, 2022. As to Motion Seq No, 001, the Court found that the Guzman and Heredia families did not articulate a legal right to the lot, and thus did not establish standing. As to Motion Seq. No. 002, the Court denied the motion due to Aqel Sheet Metal's non-appearance on the return date. (Aug. 16, 2022 Decision and Order, at 1). The stay of enforcement dissolved upon the Court's August 16, 2022 decision and order, and the Court re-set the earliest date of execution of the warrant of eviction to August 31, 2022. (Aug. 16, 2022 Decision and Order, at 1). A marshal completed the eviction on September 21, 2022, although petitioner permitted respondents' property to remain on the lot until May 9, 2023, when it sent a letter to Aqel Sheet Metal that it had until May 29, 2023 to remove its property from the lot. (Aff. of Isidore Scipio in Opp., ¶ 13, Ex. H; and Aff. of April Whitehead in Reply, ¶ 21, Ex. E).
CPLR 1024's requirement that. "[i]f the name or remainder of the name [of an anonymous party] becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly," notwithstanding, there is no indication in the court file that the caption was amended to reflect the Guzman and Heredia appearances. Accordingly, the Court will direct that the caption be amended to reflect the appearances of all those who have appeared in this action as respondents as part of this decision.
On May 17, 2023 (as corrected on May 19, 2023), the occupiers, by counsel, moved (Motion Seq. No. 003) again by order to show cause to vacate the default judgment and seek a declaratory judgment finding that Aqel Sheet Metal owned the lot through adverse possession that commenced in 2005, which the Court (Chambers, J.) signed on May 19, 2023. However, that motion was permitted to be withdrawn by decision and order dated May 22, 2023 (Chambers, J.). The occupiers subsequently moved, again by order to show cause (Motion Seq. No. 004), to vacate the default judgment and seek a declaratory judgment finding that Aqel Sheet Metal owned the lot through adverse possession, as well as an order restoring respondents to possession and barring petitioner from removing respondents' property from the lot. The Court (Crawford, J.) declined to sign the order to show cause in an order dated May 25, 2023, finding that "[c]laims for declaratory judgment must be asserted in Supreme Court - Civil Court lacks such equitable jurisdiction."
On May 26, 2023, the occupiers moved to vacate again by order to show cause (this time without seeking declaratory relief), and the Court (Crawford, J.) stayed further enforcement of the warrant of eviction and precluded petitioner from removing any of the occupiers' property from the lot, in signing an order to show cause (calendared as the instant motion) dated the same day. Following oral argument on the return date, the Court granted both sides leave for additional briefing, and continued the stay previously granted on May 26th.
The Instant Motion
In seeking to vacate the default judgment, the occupiers allege that they had no notice of the instant proceeding until Aqel saw the marshal's notice of eviction "posted outside the lot on June 22, 2022." (Whitehead Aff. in Supp., ¶ 8). After seeking an order to show cause (in what appears to be Motion Seq. No. 002), Aqel alleged that he did not appear before the Court because he was advised that an appearance was unnecessary by an unspecified attorney employed by petitioner. (Whitehead Aff. in Supp., ¶ 10). According to Aqel, he heard nothing more regarding the issue until he received a letter from petitioner stating that his property would be removed from the lot by May 29, 2023. (Whitehead Aff. in Supp., ¶ 11). As to a potential defense, Aqel and Aqel Sheet Metal argue that they have possessed the lot by adverse possession since 2005. (Whitehead Aff. in Supp., ¶¶ 22-27). The City opposes.
The Court notes that if an attorney from the New York City Department of Housing Preservation and Development ("HPD"), as alleged, contacted Aqel and advised that an appearance was not necessary, such 'advice,' might well itself provide a basis to vacate pursuant to CPLR 5015(a)(3). However, petitioner disputes this allegation and, given the jurisdictional shortcomings discussed infra. rendering any alleged call moot, the Court need not and does not further opine upon Aqel's allegation.
In addition to contesting that the occupiers did not establish a reasonable excuse for their default, the City contends that a different squatter occupied the lot in 2020 and 2021, and dispute the occupiers' allegations that they occupied the lot since 2005. (Aff. of David Lovelace in Opp., ¶ 7; and Aff. of David Correia in Sur Reply, ¶¶ 5-7). The City also states in sur reply that the lot, which it alleges has been largely vacant over the past thirty years, is now needed for an affordable housing development planned by HPD. (Aff. of Isidore Scipio in Sur Reply, ¶ 20; Affidavit of Lyna Saad).
Petitioner's Notice to Quit was Defective
Petitioner's commencement of this proceeding, and the Court's jurisdiction to hear it, are premised upon a series of notices, beginning with petitioner's 10-day notice. Effective service of a predicate notice is jurisdictional. See, Lally v. Fasano-Lally, 22 Misc.3d 29, 31 (App. Term, 1st Dept. 2008) (collecting cases and finding that defective service of notice to quit was jurisdictional and mandated dismissal); and Chinatown Apts., Inc. v. Chu Cho Lam, 51 N.Y.2d 786, 788 (1980) ("service of a proper notice of intention to terminate occupancy was a condition precedent," to summary proceeding). Petitioner contends that notice was proper, but the occupiers contest this point. (Aff. of April Whitehead in Reply, ¶¶ 36-38).
The Court finds that the City's use of fictitious pseudonyms - John and Jane Doe - rendered the 10-day notice to quit notice defective ab initio and doomed effective service. "CPLR 1024 allows use of the John Doe caption only where plaintiff is ignorant of the name or identity of a proper party defendant." ABKCO Industries, Inc. v. Lennon, 52 A.D.2d 435, 441 (1st Dept. 1976). See also, Sterling Queensboro LLC v. Kaplan, NYLJ, Oct. 10, 2023 at p.17, col.2, 2023 NYLJ LEXIS 2687, *3 (Civ. Ct, Queens Co. Sept. 29, 2023), citing, Pinnacle Bronx East v. Bowery Residents Comm., Inc., 235 N.Y.L.J. 60, *3-4 (Civ. Ct., Bronx Co. 2006). "If the petitioner knows the party's name or fails to demonstrate that diligent efforts were made to learn the name, the use of a pseudonym renders the petition fatally [defective] as to that party." Id. t is well settled that the same standard in using a pseudonym for pleadings applies to predicate notices. See e.g., First Fed. Sav. & Loan Assn v. Souto, 158 Misc.2d 219, 221 (Civ. Ct., New York Co. 1993). "The unusual authority sanctioned by [CPLR] 1024 should not be availed of in the absence of a genuine effort to learn the true name of the party," and specifically as to predicate notices, "[a] reasonable effort to learn the real name must be made before resorting to such service," of a predicate notice addressed to a John or Jane Doe, "and must be proved to have been made if such service is challenged." Pinnacle Bronx East, at *3-4 (quotation and citation omitted); and Warren Estis et al., Prac. Commentaries, RPAPL § 713 Grounds for Summary Proceedings Where No Landlord-Tenant Relationship Exists (Lexis 2023). Reasonable efforts suggested by the courts have included knocking on doors, asking prior owners about the identities of occupants, and checking the names on mailboxes. See, Deutsche Bank Natl. Trust Co. v. Turner, 32 Misc.3d 1202 (A), *4 (Civ. Ct. Bronx Co. 2011).
Although New York does not require petitioners to identify their respondents at any cost, the motion papers raise serious questions as to whether petitioner undertook any effort at all to ascertain the identity of those it sought to evict from the lot before resorting to pseudonymous notices, and New York courts have criticized "a want of due care" before proceeding anonymously for nearly two centuries. Waterbury v. Mather & Maurin, 16 Wend. 611, 613 (Sup. Ct. Jud. 1837). See also, Miller v. Stettiner, 22 How. Pr. 518, 524 (Sup. Ct., Special Term 1861) (discussing "diligent efforts to ascertain" defendant's name); and Herbert v. Gabel Equipment Corp., 123 A.D.2d 741, 742 (2d Dept. 1986) (noting "that genuine efforts were made by the plaintiffs to learn the true identity of all of the defendants prior to [employing] the procedural mechanism made available by CPLR 1024"). In the instant proceeding, the alleged adverse occupiers, who maintain a sheet metal business, were storing, inter alia, rolls of sheet metal on the subject property, and this sheet metal business, named "Aqel Sheet Metal," is directly across Gouverneur Place from the main gate of the subject lot. Thus, it is clear that the City could have and should have identified the occupiers with any modicum of effort.
Petitioners' Defective Notice was Defectively Served
Leaving aside the City's improper use of anonymous pseudonyms under CPLR 1024, the deficient notice also was not served in a manner that satisfies RPAPL § 713. Petitioner was required to serve the 10-day notice to quit in the same manner as a summons pursuant to RPAPL § 735. On the record presented, the Court cannot find that service was properly made.
The 10-day notices were served, in part, by mailed copies addressed to John Doe and Jane Doe at "1119 Washington Avenue, a/k/a 14 Gouverneur Place, Bronx, NY 10456," by certified mail bearing label numbers 7021 2720 0003 4158 7812 (John Doe) and 7021 2720 0003 4158 7881 (Jane Doe). (Postmarked Certified Mail Receipts annexed to Affs. of Christopher Massimillo of Service sworn December 6, 2021). While there is a presumption of receipt for mail that is not returned to the sender in New York, that presumption is rebuttable. See, City of New York v. VJHC Dev. Corp., 125 425, 425-426 (1st Dept. 2015). According to the United States Postal Service, "Certified Mail provides the sender with a mailing receipt and, upon request, electronic verification that an article was delivered or that a delivery attempt was made," and "[i]nformation by article number can be retrieved at www.usps.com." DMM §§ 503.1.8(a) and 503.3.1.1. When items sent by certified mail have been delivered, "[a] proof of delivery letter (including a signature, when available) may be provided by email," from the Postal Service. DMM § 503.1.8(a). Mail may be undeliverable for a number of reasons however, including an "[i]ncomplete, illegible, or incorrect address," or where the "[a]ddressee [is] not at address (unknown, moved, or deceased)." DMM § 507.1.1.1.
"Undeliverable-as-addressed mail is endorsed by the Postal Service "with the reason for nondelivery," and "is forwarded, returned to the sender, or treated as dead mail, as authorized for the particular class of mail." DMM § 507.1.4.1. "The Domestic Mail Manual is incorporated by reference in the Code of Federal Regulations," by 39 CFR § 111.1. Advantage Mailing v. United States Postal Serv., Dkt. No. SACV 21-972, 2021 U.S. LEXIS 250516, *2 (C.D. Cal. Dec. 29, 2021).
Although neither party provided the Court with tracking histories for the certified mail items in this proceeding, "[t]he Court is able to take judicial notice of relevant publicly-available government records and documents in considering a motion to vacate a default," including the tracking information available on the Postal Service's public-facing website as obtained pursuant to DMM § 503.1.8(a). Kilgore v. City of New York, 76 Misc.3d 1228 (A), *4 (Civ. Ct., Bronx Co. 2022). See also, J.A.M. Assoc. LLC v. Gomez, 75 Misc.3d 1219 (A), *2 n. 2 (Civ. Ct., Bronx Co. 2022) (taking judicial notice of publicly-facing government database search results). Additionally, postal records confirming that certified copies were specifically marked as undeliverable are dispositive. Cf., Dwyer v. Hartheimer, NYLJ, Mar. 13, 2007 at Pg. 17, (col. 1), 2007 NYLJ LEXIS 3134, *5-6 (South Nyack Just. Ct. Mar. 13, 2007) (differentiating between mail marked unclaimed and mail marked undeliverable in considering motion to vacate); and Gerald Lebovits, Small Claims Manual (6th Ed. 2022), at 50.
The Court obtained tracking information from the Postal Service's public-facing website in the course of considering the papers in the instant motion. Both certified mail letters were marked "insufficient address" on December 6, 2021 at the 10456 post office though, and were last recorded as "in transit to next facility," on January 8, 2022. This undeniably confirms that the certified letters were undeliverable as addressed and the letters sent by regular U.S. mail were sent to the exact same "insufficient address." Further, there is nothing in the record indicating that the City-claimed lot even had a mailbox despite the City repeatedly seeking to send mail to it.
United States Postal Service, USPS Tracking, https://tools.usps.com/go/TrackConfirmAction?tRef=fullpage&tLc=2&text28777=&tLabels=70212720000341587812%2C (last accessed Sept. 4, 2023); and United States Postal Service, USPS Tracking, https://tools.usps.com/go/TrackConfirmAction?tRef=fullpage&tLc=2&text28777=&tLabels=70212720000341587881%2C (last accessed Sept. 4, 2023). "Insufficient address," is a specific marking for mail that is "undeliverable as addressed." DMM § 507.1.4.1.
Assuming City control of the lot, the Court notes that the City would presumably have been required to install and maintain a mail receptacle if the City wanted the Postal Service to deliver mail to that location. See, DMM § 508.2.1.3.
While the Court is sympathetic to petitioner's apparent plight in attempting to serve required notices upon a difficult-to-serve (whether by intent or otherwise) respondent, that does not excuse petitioner from having to select a method of service in keeping with basic due process, or seek relief from the Court when available options seem unlikely to succeed. See, People v. Van Dyne, 175 Misc.2d 558, 559 (Monroe Co. Ct., 1998) (rather than permit self-help from established statutory schemes, courts should "require that the parties follow the law or seek relief" from it); and Colonial Natl. Bank, U.S.A. v. Jacobs, 188 Misc.2d 87, 91 (Civ. Ct., New York Co. 2000) (rejecting purported service that was "predestined to failure") (quotation and citation omitted). When presented with similar difficulties in the past, the City has sought that very relief pursuant to RPAPL § 735 and CPLR 308(5) that it could have sought, but did not seek, here. See, City of New York v. Clark, 234 A.D.2d 120, 120 (1st Dept. 1990). By addressing mail to a pseudonym at what it knew or should have known was an undeliverable address, petitioner did not comply with RPAPL § 735(1), rendering the petition jurisdictionally defective. See, Lally, supra.
Service of the Petition was Similarly Deficient
Even if the predicate notice had been served sufficiently to establish a subject matter predicate, service of the petition was also insufficient. Copies of the petition and commencement papers were served, in part, by mailed copies again addressed to John Doe, Jane Doe, John Doe-Under Tenant, and Jane Doe-Under Tenant at 1119 Washington Avenue, a/k/a 14 Gouverneur Place, Bronx, NY 10456, by certified mail label numbers 7021 2720 0003 4158 9007 (John Doe), 7021 2720 0003 4158 8987 (Jane Doe), 7021 2720 0003 4158 8994 (John Doe-Under Tenant), and 7021 2720 0003 4158 8970 (Jane Doe-Under Tenant). (Postmarked Certified Mail Receipts annexed to Affs. of Hector Pacheco of Service sworn January 27, 2022). Each of those four certified mail letters were marked "insufficient address" on January 28, 2022 at the 10456 post office though, and were last recorded as "in transit to next facility" on February 8, 2022 (John Doe, Jane Doe, and John Doe-Under Tenant) or February 10, 2022 (Jane Doe-Under Tenant).
Mr. Pacheco's affidavits of service conflict with the postmarked receipts annexed to them with regard to John Doe-Under Tenant and Jane Doe-Under Tenant, in which Mr. Pacheco asserts in his affidavits that he sent those mailings to 1119 Washington Avenue AKA 14 Gouverneur Place, Parking Lot, Bronx, NY 10456, adding in the reference to a "parking lot" in the address. In keeping with the strong deference granted to the accuracy of postmarked postal records, the Court credits the postmarked receipts issued by the Postal Service over Mr. Pacheco's affidavit as to how those envelopes were actually addressed.
United States Postal Service, USPS Tracking, https://tools.usps.com/go/TrackConfirmAction?tRef=fullpage&tLc=2&text28777=&tLabels=70212720000341589007%2C (last accessed Sept. 4, 2023); United States Postal Service, USPS Tracking, https://tools.usps.com/go/TrackConfirmAction?tRef=fullpage&tLc=2&text28777=&tLabels=70212720000341588987%2C (last accessed Sept. 4, 2023); United States Postal Service, USPS Tracking, https://tools.usps.com/go/TrackConfirmAction?tRef=fullpage&tLc=2&text28777=&tLabels=70212720000341588994%2C (last accessed Sept. 4, 2023); and United States Postal Service, USPS Tracking, https://tools.usps.com/go/TrackConfirmAction?tRef=fullpage&tLc=2&text28777=&tLabels=70212720000341588970%2C (last accessed Sept. 4, 2023).
As for the "nail" portion of "nail and mail" service, the City has woefully failed to demonstrate proper service in that regard as well. Jurisdiction by "substituted service is obtained only by strict adherence to the statutory standard," in effecting service. Little Shop Around the Corner v. Carl, 80 Misc.2d 717, 719-720 (Rockland Co. Ct. 1975) (collecting authorities) (emphasis in original). The Affidavit of Service from the process states that the served documents were affixed "to the door of the address at 1119 Washington Avenue aka 14 Gouverneur Place" (emphasis added) and then adds that the "documents posted to sliver [sic] fence of given address." There are numerous deficiencies with this description in relation to both the location and method/manner of affixing. For instance, the affidavit first refers to affixing to the "door" and then to the "fence." Although the Court is aware that the former was taken from a form affidavit, this contradiction and confusion is particularly troubling given that there is no "door" to the subject lot, and, moreover, that there is, in fact, a door to a building with the address of 1119 Washington Avenue (with the subject lot located behind said building). Additionally, the affidavit states only that it was posted to a "fence," which is especially unhelpful given that the property appears to be surrounded on at least two and perhaps three sides by a fence, and which, moreover, has a gate (on the Gouverneur Place side of the subject lot), which is not referenced at all by the affiant. The affidavit also makes no attempt to describe in what manner the served documents were "posted" to the fence, such as whether it was taped, rolled up and stuck through a slot, etc. Thus, for all the same reasons the predicate notice was defectively served, the petition was defectively served as well.
Although clarifying the location and manner (i.e., the "nail" portion of the nail and mail service) might otherwise be dealt with in a traverse hearing, such remedy is moot given the enormity of the mailing deficiencies.
The City's Motion Papers Further Raise Concerns Regarding the Reliability of Purported Service
Although the occupier's business and the disputed property both maintain Washington Avenue addresses, the Gouverneur Place side of the occupiers' business is almost directly across from the gate for the disputed property, which is on Gouverneur Place, not Washington Avenue. Indeed, from the aerial photo provided by the City in support of its opposition clearly shows that there is an apartment building with the address of 1119 Washington Avenue, the entrance for which is on Washington Avenue, and the entrance/exit (and presumably the gate) to the allegedly vacant lot is not on Washington Avenue at all, but rather on Gouverneur Place. In fact, the photos attached by the City as Exhibit A to David Correia's affidavit appears to be the incorrect lot entirely. Rather than depicting the allegedly occupied lot on Gouverneur Place, which is behind the apartment building with the address of 1119 Washington Avenue (and appears to be filled to the brim with rolls of sheet metal), the City attaches a photo of what is clearly the lot next to 1119 Washington Avenue, on Washington Avenue, which appears to be filled with automobiles. The City asserts that the was a prior occupier in 2020, which maintained vehicles on the subject lot, but it appears from review of the street level picture and the arial view that the picture of the lot with cars on it is the lot with the address of 1113 Washington Avenue, which in the arial view still has vehicles on it. Given what appears to be conflicting affidavit statements and supporting photographic evidence, which may or may not depict the lot that the City contends is in dispute and was served process, the Court has no faith that the City properly served the subject lot in any manner that could have been reasonably calculated to give the occupiers notice.
Reasonable Excuse and Potentially Meritorious Defense under CPLR 5015(a)(1 )
The Court having found a lack of proper service and having dismissed the action pursuant to CPLR 5015(a)(4), the Court need not make a determination on 5015(a)(1), including with respect to a potentially meritorious defense by the occupiers. In this regard, although neither party mentioned nor addressed the potential impact of 2008 NY Laws ch. 269 (RPAPL § 501(3), as amended) to this proceeding, which, among other things, changed the elements necessary to establish an adverse possession claim to include a showing by the alleged adverse possessor of a good faith belief of ownership in the subject property, the Court notes that the occupiers conspicuously fail to allege or articulate in any of their papers any such good faith belief, to the extent the 2008 amendments apply to an adverse possession that allegedly commenced in 2005 (an issue upon which the Court expressly does not decide).
Conclusion
The Court recognizes that delaying the City's stated affordable housing plans for the lot "is not without societal costs," but those costs do not justify short-circuiting civil procedures designed to protect individual rights, which "may have even greater societal costs." United States v Al-Nashiri, Dkt. No. AE467, slip op., at *45 (Mil. Commn. Trial Activity Aug. 18, 2023). See also, East 161 Assets Corp. v. Michialis, Index No. LT-313100-21/BX, slip op., at *2 (Civ. Ct., Bronx Co. Apr. 24, 2023) (denying judgment as against non-party); and 1565 GC LLC v. Monserrate, Index No. LT-315038-21/BX, slip op., at *3 (Civ. Ct. Bronx Co. Aug. 4, 2023) (reaching merits of motion in the interest of due process). Particularly here, where the government itself seeks, for its own use, to extinguish respondents' claimed rights and access to real property in a manner that could have concrete ramifications for a small local business, fundamental social contract questions arise that require close adherence to norms of due process in the face of an "increasingly skeptical" public scrutinizing government land use. Nathan Jacobsen, Sand or Concrete at the Beach? Private Property Rights on Eroding Oceanfront Land, 31 Environs Envtl. L. & Poly. J. 217, 248 (2008). See also, generally, Amy Lavine, From Slum Clearance to Economic Development: A Retrospective of Redevelopment Policies in New York State, 4 Albany Govt. L. Rev. 212 (2011); and Seawall Assocs. v. New York, 74 N.Y.2d 92 (1989). "[T]his court does not live in an ivory tower, and is fully familiar with the crisis that New York," faces in housing its fellow New Yorkers, but the Court cannot overlook basic due process merely because it may be expedient for the government, and cannot assume jurisdiction for itself when petitioner has not properly laid the foundational work necessary for the Court to act. Bransten v. State of New York, 40 Misc.3d 512, 529 (Sup. Ct., New York Co. 2013), affd., 117 A.D.3d 455 (1st Dept. 2014); and Hollingsworth & Vose Co. v. Connor, 764 A.2d 318, 325 (Md. Ct. Spec. App. 2000). On the record before the Court, the default judgment cannot stand.
Available at https://int.nyt.com/data/documenttools/ruling-in-u-s-s/63627427c1a86144/full.pdf (last accessed Sept. 6, 2023).
Accordingly, it is
ORDERED that, pursuant to CPLR 1024, the clerk amend the caption of this proceeding from" City of New York v. John Doe; Jane Doe; John Doe; Jane Doe" to" City of New York v. Aqel Sheet Metal Inc.; Alexander Aqel; John Doe; Jane Doe "; and it is further
ORDERED that the instant motion is granted; and it is further
ORDERED that the warrant of eviction in this proceeding is vacated; and it is further
ORDERED that the default judgment in this proceeding is vacated; and it is further
ORDERED that all warrants, notices, restraints, or other enforcement of the default judgment in this proceeding are vacated; and it is further
ORDERED that respondents Aqel Sheet Metal Inc. and Alexander Aqel be restored to possession of the lot at issue in this proceeding forthwith; and it is further
ORDERED that the petition in this proceeding is dismissed without prejudice for lack of jurisdiction.
This constitutes the Decision and Order of the Court.