Opinion
No. 1397–17.
11-21-2017
NATIONSTAR MORTGAGE, LLC., Petitioner, v. Carol L. DAVIS, Douglas Davis and Joseph E. Davis, "John Doe' and "Jane Doe", Respondents.
Aldridge Pite, LLP, Melville, Attorney for Petitioner. Charles Davis, Respondent Pro Se. Shuaib Nadin, Respondent Pro Se.
Aldridge Pite, LLP, Melville, Attorney for Petitioner.
Charles Davis, Respondent Pro Se.
Shuaib Nadin, Respondent Pro Se.
ADAM SEIDEN, J.
In this holdover proceeding, respondent Charles Davis moves by order to show cause seeking an order vacating the judgment of possession in favor of petitioner and the warrant of eviction. Petitioner opposes the motion.
In June 2017, petitioner commenced a summary proceeding seeking possession of the premises at 150 S. 6th Avenue, Mount Vernon, New York, due to respondent's failure to vacate the premises after petitioner acquired title to the property as a result of its sale in a foreclosure action.
Petitioner was granted a Final Judgment of Foreclosure and Sale for the subject property on July 21, 2016 and the property was subsequently purchased by petitioner at the foreclosure auction on November 14, 2016. Petitioner thereafter commenced the instant proceeding. On June 22, 2017, petitioner and respondent Joseph Davis appeared in court after which petitioner was granted a judgment and warrant of eviction was issued against all respondents which was stayed until June 30, 2017. On August 7, 2017 respondent Charles Davis filed an Order to Show Cause seeking vacatur of the judgment and warrant of eviction reinstating him to possession of his apartment within the subject premises. Respondent Charles Davis appeared in court on August 14, 2017 in support of his Order to Show Cause. Respondent asserts in his motion papers that the subject premises is a three-family house and that he resides in one of the units while respondent Joseph Davis lives in one of the other units. Respondent further asserts that he was not aware that he had to appear in court to respond to the petition because his name was not listed on the Notice of Petition or Petition. Respondent contends that he thought the "John Doe" and "Jane Doe" referred to in the Notice of Petition and Petition pertained to all other persons residing in Mr. Joseph Davis' unit since petitioner's counsel knew who he was, that he was a tenant in the subject premises and had even sent him correspondence in the mail prior to serving the Notice of Petition and Petition.
Shuaib Nadin, a tenant in one of the units in the subject premises, also filed an order to show cause on August 9, 2017 which was not signed by the Court, however, he appeared in court on August 14, 2017 as well and was advised by the Court that it would address his motion to vacate the default judgment at the same time it decided the instant motion.
In opposition, petitioner contends that respondent Charles Davis was properly served with the Notice of Petition and Petition by substituted service, that Respondent has not denied receipt of the Petition and that he has failed to establish either an excusable default or a meritorious defense to the action in order to warrant a vacatur of the default judgment. Notably, petitioner does not refute respondent Charles Davis' claim that it knew he was a tenant in one of the units in the multi-family dwelling of the subject premises.
CPLR § 1001(a) defines a necessary party as "[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants." Triborough Bridge and Tunnel Authority v. Wimpfheimer, 163 Misc.2d 412 (Civ.Ct. New York Cty.1994). A petitioner many not designate a party as "John Doe" or "Jane Doe" when there is actual knowledge of the party's identity. If none of the names is known, then a completely fictitious name may be utilized. However, such a designation can only be made if the designating party does not know all or part of the other party's name; otherwise, the party must be identified to the extent that his or her name is known. First Federal Savings and Loan Association of Rochester v. Souto, 158 Misc.2d 219 (Civ Ct. N.Y. Cty.1993). Further, a petition naming the respondent as "John Doe" or "Jane Doe" is subject to dismissal if the true identity of the respondent is known to the petitioner when the proceeding is commenced. Varveris v. Infante, NYLJ Sept. 15, 1993, p. 25 col. 3 (Civ Ct. Queens Cty.); Capital Resources Corp. v. "John Doe" and "Jane Doe", NYLJ June 17, 1992, p. 25, col. 6 (Civ Ct. Kings Cty.).
Moreover, a diligent effort to learn the party's name is a condition precedent to the use of CPLR § 1014, which should only be used as a last resort. George Tut & Company v. Jane Doe, 20 Misc.3d 815 (Civ.Ct. Kings Co.2008). If a petitioner knows a party's name or fails to demonstrate that diligent efforts were made to learn a party's name, then use of a fictitious name is not authorized by CPLR § 1014 and the petition is rendered fatally defective as to that party. Deutsche Bank Natl. Trust Co. v. Turner, 32 Misc.3d 1202(A) (Civ.Ct. Bronx Cty.2011) ; Pinnacle Bronx East v. Bowery Residents Committee Inc., 2006 N.Y. Misc. LEXIS 4025, citing Triborough Bridge and Tunnel Authority v. Wimpfheimer, 165 Misc.2d 584 (App. Term 1st Dept.1995) ; First Federal Savings and Loan Association of Rochester v. Souto, 158 Misc.2d 219 (Civ Ct. N.Y. Cty.1993).
After reviewing the applicable case law and having considered the arguments presented in respondent Charles Davis' motion papers, the Court's decision on respondent's motion to vacate the default judgment and warrant of eviction shall be held in abeyance pending a hearing to be held to determine whether petitioner knew of or made diligent efforts to ascertain the names of respondent Charles Davis and Shuaib Nadin before filing a Notice of Petition and Petition using the fictitious designations of "John Doe" and "Jane Doe" pursuant to CPLR § 1014. The Court directs all parties to appear for a hearing on said issue on December 18, 2017 at 2:00 pm.
In the interest of judicial efficiency, the Court's hearing and determination as to whether the Petition in the instant matter is defective and the default judgment and warrant of eviction should be vacated will apply with respect to both respondent Charles Davis and Shuaib Nadin.
Respondents Charles Davis and Shuaib Nadin are directed to produce at the hearing any and all evidence and/or documentation regarding whether petitioner knew or should have known that they were tenants in the subject premises prior to the filing the Notice of Petition and Petition.
This constitutes the Decision and Order of this Court.
The Court considered the following papers on this motion:
Order to Show Cause, dated August 14, 2017; Affirmation in Opposition dated September 12, 2017; Reply Affirmation dated October 5, 2017.