Opinion
50206/2021
02-22-2022
Maxine KERR, Petitioner, v. Philemon NICHOLSON, Respondents.
For Petitioner: Pro Se (Maxine Kerr) For Respondent: Ashley Elem
For Petitioner: Pro Se (Maxine Kerr)
For Respondent: Ashley Elem
Jack Stoller, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Pages numbered
Order To Show Cause and Supplemental Affidavit and Affirmation Annexed 1, 2, 3
Email In Opposition 4
Upon the foregoing papers, the Decision and Order on this motion are as follows:
Maxine Kerr, the petitioner in this proceeding ("Petitioner"), commenced this lockout proceeding against Philemon Nicholson, the respondent in this proceeding ("Respondent"), seeking possession of the subject premises by an order to show cause signed on August 18, 2021 that, inter alia , stayed Respondent from re-letting the subject premises pending the hearing of the proceeding. Petitioner obtained a judgment against Respondent after trial by a decision dated January 6, 2022. Respondent now moves to dismiss on the ground of a failure to join a necessary party, to wit, Respondent's wife and nephew.
Background
Both parties proceeded to trial of this matter when they were pro se. Respondent did not interpose a defense of failure to name a necessary party while he was pro se, nor did he raise an issue of any other occupants of the subject premises during the trial. The Court found that Petitioner had standing to commence this proceeding because the parties have a minor child together, Respondent's lockout of Petitioner had the effect of depriving possession of the subject premises to Respondent's minor child, and as a matter of law a parent cannot revoke a privilege of a minor child to reside in the parent's home. Sears v. Okin , 16 Misc 3d 134(A)(App. Term 2nd Dept. 2007). After the judgment, Respondent then retained counsel and moved for this relief by an order to show cause filed on February 4, 2022.
Respondent avers in his supporting affidavit that Petitioner had lived in the subject premises until March of 2021 and that "[s]ometime thereafter, my wife and [other] children began residing in the [subject premises] part-time." While Respondent avers in support of his motion that he and his wife executed a lease for the subject premises "[a]round the same time" that Petitioner commenced this proceeding, the lease purporting to show that he and his wife are co-tenants of the subject premises was executed on September 1, 2021 and commenced on September 1, 2021. Respondent also avers that at some point his nephew moved into the subject premises, although he does not state a date.
Discussion
Technically, this proceeding is a summary proceeding pursuant to RPAPL Article 7. The legal authority dealing with necessary parties in summary proceedings tends to focus on which occupant must named in order for a warrant of eviction to apply to that occupant, See , e.g. , RPAPL § 749(1), Madison Plaza Commercial Owners, LLC v. EB Leasing, LLC , 28 Misc 3d 139(A)(App. Term 1st Dept. 2010), Jackson v. New York City Hous. Auth. , 88 Misc 2d 121, 122 (App. Term 1st Dept. 1976) ; Parkash 2125 LLC v. Galan , 61 Misc 3d 502, 509-10 (Civ. Ct. Bronx Co. 2018), G & L Holding Corp. v. Gonzalez , 43 Misc 3d 1206(A)(Civ. Ct. NY Co. 2014) ; Third Lenox Terrace Assoc. v. Jones , 19 Misc 3d 1103(A)(Civ. Ct. NY Co. 2008), New York County Dist. Attorney's Office v. Oquendo , 147 Misc 2d 125, 127 (Civ. Ct. NY Co. 1990), underscoring a mismatch between a model of a summary eviction proceeding and an illegal lockout proceeding. While a petitioner in an illegal lockout proceeding can potentially seek a warrant of eviction that could deliver possession of the premises from a respondent to a petitioner, a daily reality of lockout proceedings is that landlords are frequently not parties in them. Roommates or family members often litigate lockout proceedings against each other, See , e.g. , Wisdom v. Byfield , 71 Misc 3d 1229(A)(Civ. Ct. Kings Co. 2021), Quigley v. Phillips , 71 Misc 3d 1207(A)(Civ. Ct. Kings Co. 2021), scenarios where the restoration of one party to possession would not necessarily dispossess the other party. This case presented such a situation. Accordingly, the Court did not permit an issuance of the warrant of eviction in this matter, the effect of which was to restore Petitioner to possession of the subject premises even if someone else was also in occupancy of the subject premises. The Court therefore will not adjudicate whether an occupant is a necessary party as the analysis is peculiar to summary proceedings. Rather, the Court applies the standard prevailing in plenary actions.
A necessary party is either (1) one who must be joined if either complete relief is to be accorded between the parties to the action or (2) one who might be inequitably affected by a judgment. CPLR § 1001(a), Mason Tenders Dist. Council Welfare Fund v. Diamond Constr. & Maint., Inc. , 84 AD3d 754, 755 (2nd Dept. 2011). With regard to the first definition of a necessary party, as noted above, the Court awarded Petitioner a final judgment of possession but not a warrant of eviction, contemplating that Petitioner would not be in exclusive possession of the subject premises, but would be in possession of the subject premises with others. The occupancy of others would therefore not deprive Petitioner of complete relief without the joinder of other parties. If Petitioner can obtain complete relief without the joinder of other parties, those parties are not necessary parties for purposes of Respondent's dismissal motion. TK Mktg., Ltd. v. Nat'l Ben. Life Ins. Co. , 160 AD2d 665, 666 (1st Dept. 1990), Mitchell Maxwell & Jackson, Inc. v. US Realty & Inv. Co. , 2010 NY Slip Op. 31901(U), ¶ 21 (S. Ct. NY Co. 2010)(Edmead, J.).
The second definition of a necessary party is one who might be "inequitably" affected by a judgment. The evidence that Respondent's wife co-signed a lease for the subject premises after Petitioner commenced this proceeding, the lack of clarity as to the date that Respondent's nephew ostensibly took possession of the subject premises, and the absence of a motion from either of these nonparties loom significant in the Court's determination of the equitable effect of the judgment in this proceeding on them. Moreover, even though a motion to dismiss for failure to join a necessary party pursuant to CPLR § 3211(a)(10) may be made at any time, CPLR § 3211(e), the Court may consider a delay in determining the equity of the effect of a judgment on a nonparty. Aquavella v. Harvey, 40 AD2d 940, 941 (4th Dept. 1972). Respondent's silence as to other occupants of the subject premises until four weeks after the Court awarded Petitioner a judgment against Respondent, combined with Respondent's apparent extrajudicial attempt to thwart Petitioner's cause of action by moving in other occupants to the subject premises in violation of the Court's order staying re-letting of the subject premises pending the hearing of the petition does not render the effect of the judgment on such occupants inequitable. Indeed, dismissing the proceeding on such grounds would undermine the order the Court rendered by the order to show cause upon which Petitioner commenced this proceeding and thus would itself be inequitable.
Accordingly, it is ordered that the Court denies the motion.
This constitutes the decision and order of this Court.