Opinion
14224/2019
06-21-2019
PRC WESTCHESTER AVENUE, LLC, Petitioner, v. "John DOE" and "Jane Doe," Respondents.
Jason D. Boroff & Associates, PLLC, for the Petitioner Bronx Legal Services, for William Feliciano
Jason D. Boroff & Associates, PLLC, for the Petitioner
Bronx Legal Services, for William Feliciano
Karen May Bacdayan, J.
Recitation, as required by CPLR 2219 (a), of the papers considered in review of this motion:
Papers Numbered
Notice of Motion, Affidavits, and annexed Exhibits (A-F) 1
Affidavits in Opposition and annexed Exhibits (A-B) 2
Affidavit in Reply 3
After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:
PROCEDURAL HISTORY AND ARGUMENTS
This is a licensee holdover proceeding brought against "John Doe" and "Jane Doe" after the death of the tenant of record, Denise Santiago. A 10-day notice to vacate the premises, dated February 5, 2019 was served upon Jane and John Doe. Thereafter, the proceeding was commenced by service of a Notice of Petition and Petition on March 18, 2019. William Feliciano ("Feliciano") appeared in court on the first court date of March 26, 2019 claiming possession of the subject premises. The proceeding was adjourned to enable Feliciano to seek an attorney. Feliciano retained Bronx Legal Services, and this motion ensued.
Feliciano moves to dismiss this proceeding pursuant to CPLR 3211 (a) (10) and RPAPL 741 (4) for Petitioner's failure to name him as a necessary party because he has "independent possessory rights" as a non-traditional remaining family member. Such failure, Respondent further argues, deprives this court of subject matter jurisdiction which mandates dismissal of the proceeding pursuant to CPLR 3211 (a) (2). While not specifically set forth in the Notice of Motion, his counsel argues in his attorney's affirmation, supported by his affidavit, that the proceeding should be dismissed as Petitioner has misused CPLR 1024 (Unknown Parties) by naming him in the caption as "John Doe," and that Petitioner did not perform a "diligent inquiry" into Feliciano's real name prior to resorting to the use of a pseudonym which requires dismissal. (Respondent's attorney's affirmation at 19 - 23.) Respondent also moves for attorney's fees and "further relief as the Court may deem just and proper."
Respondent does not expound on his argument that the Court is deprived of subject matter jurisdiction over this proceeding, nor does his attorney cite any case law in support of this argument. The Civil Court is vested with subject matter jurisdiction over housing matters by statute. (CCA 110 ; see 170 W. 85th St. Tenants Assn. v. Cruz , 173 AD2d 338, 339 [1st Dept 1991].) Accordingly, the Court will not dismiss on this basis.
Petitioner opposes Respondent's motion on the basis that Respondent, who has not "proven" that he is a non-traditional family member, is not a necessary party. Petitioner argues that Respondent may be a "proper party" but is not a necessary party, and that Petitioner properly used a pseudonym to name Feliciano because it made diligent efforts to discover his identity prior to commencing this proceeding to no avail. Petitioner asks the Court to deny Respondent's motion "along with such other and further relief as the court deems appropriate."
In reply, Respondent argues that Respondent does not need to prove his succession claim, only a colorable claim of succession need be shown to require that he be named as a necessary party to this proceeding. Respondent maintains that "joinder is an inadequate remedy—the proper remedy is dismissal." (Reply affidavit of Feliciano's counsel at 7). Respondent further argues that the unsigned affidavit of Eric Santiago, Petitioner's property manager, which alleges a diligent inquiry to discover the names of any remaining occupants in the apartment, should not be considered.
DISCUSSION
Motion to Dismiss for Failure to Name Feliciano as a Necessary Party
Under CPLR 1001 (a), necessary parties include "[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 ...". CPLR 1001 contemplates the joinder of parties as necessary to accord complete relief in the proceeding. "If jurisdiction cannot be obtained over an absent necessary party, the court must apply the discretionary factors in CPLR 1001 (b) to determine whether the action may proceed without the necessary party." (Vincent Alexander, 2008 Supp Practice Commentaries, McKinney's Cons Laws of NY, CPLR C1001:2 [Note: online version].) These factors include consideration of:
"whether the plaintiff has another effective remedy in case the action is dismissed on account of the nonjoinder;
the prejudice which may accrue from the nonjoinder to the defendant or to the person not joined;
whether and by whom prejudice might have been avoided or may in the future be avoided; and
whether an effective judgment may be rendered in the absence of the person who is not joined."
( CPLR 1001 [b] [internal numeration omitted].)
In support of his position that dismissal is warranted because he is an unnamed necessary party with independent possessory rights, Feliciano cites to several lower court Second Department cases which are not controlling and which the Court finds distinguishable.
In one such case, 1515 Macombs Rd. Corp. v. Austin (149 Misc 2d 473 [Civ Ct, NY County 1990] ), the court found that the petitioner's failure to name or serve the estate of the deceased tenant of record, who had an unexpired leasehold interest in the apartment at the time of her death, required dismissal of the petition for failure to join a necessary party. This is not relevant to the argument propounded by Feliciano here.
390 West End Assoc., LP v. Pearl , (24 HCR 422A, NYLJ Aug. 7, 1996 at 23, col 2 [Civ Ct, NY County, Malatzy, J.] ) is also inapposite. In Pearl , a nonpayment proceeding, the estranged wife of the tenant of record moved to be restored to possession of the premises having never received the court papers, and having never appeared in the proceeding. From the decision, it is deduced that the estranged wife was not named as Jane Doe. The court exercised its discretion and restored her to possession upon full tender of the arrears "in the interests of justice." (Id. ) The Pearl court, like Feliciano here, cites to Sanford v. Rollins , (161 Misc 2d 754 [Civ Ct, NY County 1994] ), for the proposition that Feliciano is a necessary party. The Appellate Term, Second Department has, however, held that Rollins is inconsistent with the law in the Second Department and that it should no longer be followed. ( Randazzo v. Galietti , 55 Misc 3d 131[A], 2017 NY Slip Op 50423[U] [App Term, 2d Dept 2017] citing Loira v. Anagnastopoulos , 204 AD2d 608, 609 [2d Dept 1994] [finding that there was "no merit to the plaintiff's contention that she should have been made a party to the holdover proceeding in the Civil Court. Since the plaintiff is merely the daughter of the tenant, she can be removed from the premises even though she was not a party to the holdover proceeding"].)
Also cited by Respondent is M & M Crown Realty LLC v. Griffith , (32 Misc 3d 1227[A], 2011 NY Slip Op 51475[U] [Civ Ct, Kings County 2011].) The Griffith court likewise relied on the disavowed decision in Sanford v. Rollins for the proposition that individuals with independent possessory rights to premises are necessary parties, and failure to name them requires dismissal. The court found that the party moving for dismissal on the basis that she was an unnamed necessary party to the proceeding had not made a "sufficient showing in her motion papers and exhibits that she was a traditional or nontraditional family member of [the deceased tenant] who had independent possessory rights to the apartment by way of succession rights" such that dismissal should eventuate. (Id. ) However, under the current law in the Second Department, even if the remaining occupant had made a colorable showing of an "independent possessory right" to the apartment, she would not have been a necessary party to the proceeding. ( Loira v. Anagnastopoulos , 204 AD2d at 609.)
Notably, Triborough Bridge and Tunnel Auth. v. Wimpfheimer , (165 Misc 2d 584 [App Term, 1st Dept 1995] ), cited by Petitioner and authoritative in this judicial department, instructs that while dismissal may be appropriate against subtenants described as Jane and John Doe, subtenants are proper parties, not necessary parties such that dismissal of the proceeding is required. This holding is in harmony with 170 W. 85th St. Tenants Assn. v. Cruz , (173 AD2d 338 [1st Dept 1991].) As held in Cruz , "due process requires only that, for the warrant to be effective against a subtenant, licensee or occupant, he be made a party to the proceeding, either by naming him in and serving him with the petition and notice of petition or by joining him as a party during the pendency of the proceeding." ( Id. at 339-340, citing CPLR 401, CCA 110 [d].) Thus, failure to name or join a licensee, as here, means that the warrant is not effective as against him, but it does not make him a necessary party to the proceeding requiring dismissal. (See also RPAPL 749 [1].)
The Court finds that Feliciano is not an absent, unnamed necessary party over whom jurisdiction cannot be obtained in this proceeding such that dismissal of the proceeding is required pursuant to CPLR 1001. While Feliciano is correct that he need not prove his succession claim at this juncture, neither is he a party who cannot be joined in this proceeding as he has already appeared in the proceeding asserting his right to litigate a succession claim to the subject premises. In fact, joinder of Feliciano would mean that complete relief could be accorded between the parties in this one proceeding. Significantly, Feliciano makes no argument whatsoever that he is prejudiced by his non-joinder in the first instance.
Motion to Dismiss for Petitioner's Misuse of CPLR 1024 (Unknown Parties)
CPLR 1024 states, in relevant part:
"[a] party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly ."
(Emphasis added.) The purpose of CPLR 1024 is to ensure a defendant is properly identified and given notice of and an opportunity to defend in the proceeding. (Vincent Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C1024 [Note: online version last accessed June 21, 2019].)
That Petitioner did not conduct a diligent inquiry to ascertain the true identity of Respondent is disputed. (Aff of Eric Santiago at 2.) Also disputed is whether the Court may rely on the unsigned affidavit of Eric Santiago, the signed and notarized of which was provided at oral argument with the explanation that it could not be located at the time Petitioner's opposition papers were served. Regardless, for the following reasons, the Court does not find these issues conclusive under the facts and circumstances of this case.
Feliciano did not default in this proceeding and does not dispute receipt of the Notice to Quit or of the Notice of Petition and Petition, or that, as the sole remaining occupant in the premises after the tenant of record's death, the papers were intended for him. (Aff of Feliciano at 16-17.) Nor does Feliciano aver any prejudice that would befall him by allowing this proceeding to continue and to be determined on the merits of his succession claim. By appearing in this proceeding on the first court date in response to the court papers, and on the second court date through an attorney and claiming succession rights to the apartment, Feliciano has waived this defense. ( ICD Group Intl. Ltd. v. Achidov , 284 AD2d 244 [1st Dept 2001] [allowing plaintiff to amend the caption to reflect the true name of the defendant originally named as "John Doe", since that defendant was fairly apprised that it was the party the action was intended to affect, and since it was not prejudiced by the amendment], citing Flannery v. Gen. Motors Corp. , 214 AD2d 497 [1st Dept 1995] ; Governeur Gardens Hous. Corp. v. Lee , 24 Misc 3d 129[A], 2009 NY Slip Op 51322[U] [App Term, 1st Dept 2009].)
Bumpus v. New York City Transit Auth. , (66 AD3d 26 [2d Dept 2009] ) cited by Respondent does not require a different result. In Bumpus , the Court parsed the interplay between CPLR 1024 and CPLR 306-a and extended the time to serve a summons and complaint under CPLR 306-a despite the proscription in that statute against service of a summons and complaint more than 120 days after the commencement of the action. Noting that while the plaintiff could have utilized CPLR 1024 in order to effectuate timely service under CPLR 306-b, but also recognizing the difficulties faced by the plaintiff in ascertaining the Doe's true identity and the challenges of serving a party described by a pseudonym, the Court extended the time for plaintiff to serve the summons and complaint "in the interests of justice." ( Id. at 36.) The Bumpus court, did not dismiss the proceeding based on misuse of the unknown parties provision of the CPLR.
The Court finds that it is in the interests of justice and judicial economy to join Feliciano in this proceeding and name him as a proper party. Doing so will resolve Feliciano's claims on the merits and accord complete relief between the parties in this one proceeding. (See e.g. Creagh v. Stilwell , 128 Misc 2d 213, 215 [Civ Ct, NY County 1985] [permitting joinder of an owner in a holdover proceeding between sublessor and sublessee pursuant to CPLR 401 since "in the interests of justice and to promote judicial economy," it was preferable to have the respondent's right to possession as against the alleged sublessor and the owner determined in one litigation."] ) The Cruz Court specifically contemplated the sua sponte joinder of a natural person through the mechanisms provided in New York City Civil Court Act § 110 (d) and CPLR 401. ( Cruz , 173 AD2d at 339-40.)
See also Tirado v. Miller , 75 AD3d 153, 154 [2d Dept 2010] ) [ "[T]rial courts, in determining whether to grant or deny relief requested in a motion, are not restricted by the reasoning employed by counsel, especially where the notice of motion contains a general prayer for relief." (75 AD3d at 160 ).
CONCLUSION
Accordingly, it is hereby,
ORDERED, that Respondent's motion to dismiss is denied; and
ORDERED, that William Feliciano is added as a proper party to the proceeding and the clerk is directed to amend all papers nunc pro tunc to reflect his true name, substituting him for respondent "John Doe" herein.
This constitutes the Decision and Order of this Court.