Opinion
10721/2016
12-14-2016
974 Anderson LLC, Petitioner-Landlord, v. Manuel Lora Davis "JOHN/JANE DOE", Respondent-Tenant.
Attorney for Petitioner: Green & Cohen, PC 319 East 91st Street, Professional Suite New York, New York 10128 (212) 831-4400 Attorney for Respondent Sully Manuel Lora a/k/a Sully Manual Lora Davis: Bart Mayol, Esq. 930 Grand Concourse, Ste. 1B Bronx, New York 10451 (718) 933-3633 Respondent Pro Se: Ms. Goriyda Lora Davis
Attorney for Petitioner: Green & Cohen, PC 319 East 91st Street, Professional Suite New York, New York 10128 (212) 831-4400 Attorney for Respondent Sully Manuel Lora a/k/a Sully Manual Lora Davis: Bart Mayol, Esq. 930 Grand Concourse, Ste. 1B Bronx, New York 10451 (718) 933-3633 Respondent Pro Se: Ms. Goriyda Lora Davis Diane E. Lutwak, J.
Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Respondent's Motion to Dismiss the Petition and Grant Attorneys' Fees:
PapersNumbered
Notice of Motion With Attached Affirmation, Affidavit and Exhibits A & B 1 Affirmation and Affidavit in Opposition 2 Reply Affirmation With Exhibits A & B 3
Upon the foregoing papers, the Decision and Order on this Motion are as follows: BACKGROUND & PROCEDURAL HISTORY
This is a holdover proceeding brought by petitioner-landlord 974 Anderson LLC against the occupants of Apartment #5F at 974 Anderson Avenue, Bronx, New York. Prior to the commencement of the proceeding, Petitioner by its managing agent Eleanor Patrick served a predicate "Ten (10) Day Notice to Quit" dated December 16, 2015 on the occupants of the premises, named as Manuel Lora Davis and "John/Jane Doe", advising them "that it has been discovered that Manuel Lora Davis and/or 'John/Jane Doe' have been residing there, that "no permission was given to said occupants to occupy the subject premises," that the occupants "have unlawfully intruded into and/or squatted upon" the premises without the landlord's permission, that no rent has ever been accepted, that the occupants were required to vacate the premises on or before February 8, 2016 and that summary eviction proceedings would be instituted if they failed to do so. The affidavit of service of the Ten Day Notice alleges that it was served on all respondents, after a prior unsuccessful attempt at personal service, on January 28, 2016 at 9:39 pm, by affixing a copy for each occupant on the entrance door to the premises on January 29, 2016 at 10:38 am and sending additional copies to each of them by certified and first-class mail.
Thereafter, Petitioner commenced this holdover proceeding by filing a petition with this court on February 16, 2016, dated February 9, 2016, seeking a final judgment of possession, issuance of a warrant of eviction and use and occupancy. The Petition alleges that respondents Manuel Lora Davis and/or "John/Jane Doe" are "currently occupying the premises without the permission of the landlord and have squatted upon the apartment." The affidavit of service of the Holdover Notice of Petition and Petition, which was filed along with the Notice of Petition on February 25, 2016, alleges that it was served on all respondents, after a prior unsuccessful attempt at personal service on February 23, 2016 at 9:09 am, by affixing a copy for each occupant on the entrance door to the premises on February 24, 2016 at 6:03 am and sending additional copies to each of them by certified and first-class mail.
A review of the documents in the court file and notations on the court file jacket indicates the following chronology. On the initial return date of March 3, 2016 the case was adjourned to April 8, 2016 with the notation "Ambulance called". On April 8, 2016 the case was adjourned to May 10, 2016 with the notation "APS Ref & GAL". The court file contains an "APS Housing Court Referral" form for 92-year-old Goriyda Lora, with an address at the subject premises, and lists her son as "Manuel Lora Davis", a household member who "appeared in court on behalf of [her]". The form notes that Ms. Lora is homebound, "blind, non-ambulatory, deaf" and has other health problems. Although the form is undated, it references a "Return Date" in court of May 10, 2016. The court file also contains an Order dated April 18, 2016 appointing Angelo R. Picerno as guardian ad litem ("GAL") for Goriyda Lora and adjourning the case to May 31, 2016. On May 10, 2016, a notation on the court file jacket indicates that the case was adjourned to June 22, 2016 at 2:30 pm for trial, with the additional notation: "GAL to contact ward".
On May 31, 2016, a Stipulation signed by Mr. Picerno as GAL and by an attorney from Green & Cohen for Petitioner adjourned the case to June 22, 2016 at 2:30 pm for trial. On June 22, 2016 Mr. Picerno submitted a written answer on behalf of his ward asserting a "General Denial". A notation on the court file jacket dated June 22, 2016 indicates that the case was adjourned to June 24, 2016 for the tenant of record to appear. An Affidavit of Unavailability With Request for Adjournment which was completed in the name of "Manuel Lora Davis" on June 23, 2016 and signed by "Sully M Lora" indicated that he would be unavailable from June 24 through June 28. On June 24, 2016 the case was adjourned to July 15, 2016. On July 11, 2016 the court received an Affirmation of Engagement by fax from the GAL Mr. Picerno, indicating that he was not available to appear on July 15 and requesting an adjournment. On July 15 the court issued a Decision/Order "over the strenuous objection of Petitioner's counsel" adjourning the case to August 8, 2016 for settlement or trial and noting that both the GAL for Goriyda Lora and Manuel Lora Davis had submitted documentation of unavailability. On August 8, 2016 the case was adjourned again to September 12, 2016 with the notation that no interpreter was available.
On September 12, 2016 the court conferenced the case with Petitioner's attorney from Green & Cohen, Mr. Picerno as GAL for Goriyda Lora, and, with the assistance of a Spanish-language court interpreter, Respondent, who identified himself initially as "Sully Manuel Lora" and asserted that his name was stated incorrectly in the court papers. Upon questioning by the court, notations of which appear on the court file jacket and the recording of which has been reviewed by the court, Respondent explained that his full name is "Sully Manuel Lora Davis", with "Davis" being the last name of his mother's father, and that his mother's full name is "Goriyda Lora Davis". Mr. Lora Davis explained that his mother is 93 years old and has numerous health problems: she is blind, deaf, cannot walk, and has diabetes. Mr. Picerno requested to be relieved as GAL as, despite his diligent efforts, Mr. Lora Davis had not allowed him to have access to his mother. The court issued an Order dated September 12, 2016 granting the GAL's request to be relieved, adjourning the case to October 18, 2016 for trial and re-referring "Jane Doe"/Goriyda Lora Davis to Adult Protective Services. On October 18, 2016 attorney Bart Mayol filed his Notice of Appearance on behalf of "Manuel Lora" and the case was adjourned to November 22, 2016 for trial. In the meantime, Mr. Mayol filed a motion to dismiss on November 4, 2016, returnable November 22, 2016. Petitioner's counsel served and filed an Affirmation in Opposition on November 22, 2016 and the court adjourned the case to December 9, 2016 for argument, with reply due by December 1, 2016.
In his affidavit in support of his motion, Respondent asserts that his name is "Sully Manuel Lora", not "Manuel Lora Davis" as is listed in the caption of the petition, and moves to dismiss the petition under CPLR 3211(a)(2) for lack of subject matter jurisdiction, under CPLR 3211(a)(8) for lack of personal jurisdiction and under CPLR 3211(a)(10) for failure to name a necessary party. Respondent does not claim that he was not served; his claim is that he was not personally served and that he was not named properly in either the predicate notice or the Notice of Petition and Petition.
Petitioner opposes Respondent's motion by asserting that it is untimely, and that in any event there is no basis for dismissal under CPLR 3211(a)(2), (a)(8) or (a)(10) as Petitioner - "after a diligent search" - determined the identity of one of the occupants to be "Manuel Lora Davis" and/or "John Doe" and that accordingly he was sufficiently identified and properly named as a party in both the predicate notice and the court papers, which were properly served by "conspicuous service". Petitioner also objects to the interposition of an answer by Respondent, and notes that Respondent's notice of motion does not seek leave of court to interpose an answer, and the answer which is annexed to the moving papers is not even mentioned in the supporting affirmation and affidavit. DISCUSSION
While Petitioner also asserted that Respondent's papers were defective because his affidavit was not properly notarized, after Petitioner made a similar error in its opposition papers both parties' counsel, by Stipulation dated December 9, 2016, agreed to waive all notary issues.
Respondent's arguments all stem from his claim that he was not named correctly in the predicate notice and caption of the court papers and that he was not personally served with any of those papers. More specifically, Respondent's arguments are: First, that this court lacks subject matter jurisdiction because he "was not personally served nor was he properly named in the predicate notice". Affirmation in Support at ¶ 3. Second, that this court lacks personal jurisdiction based upon the claim that Petitioner "failed again to name and personally serve Sully Manuel Lora at the subject premises." Affirmation in Support at ¶ 4. Finally, Respondent argues that Petitioner has failed to name and serve a necessary party. These arguments are all unavailing.
There is no requirement that respondents in summary eviction proceedings be personally served. Under RPAPL § 735(1), where personal or substituted service cannot be obtained upon "reasonable application", a permissible manner of service upon an individual is by "affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises", followed by sending additional copies by regular and certified mail. See, e.g., Eight Assocs v Hynes (102 AD2d 746, 476 NYS2d 881 [1st Dep't 1984], aff'd, 65 NY2d 739, 492 NYS2d 15 [1985]). This type of service, known as "conspicuous place" or "nail and mail" service, also applies to service of the predicate ten-day notice to quit which is required in proceedings brought under RPAPL § 713 where the Petitioner claims that "no landlord-tenant relationship exists", as is the case herein. Accordingly, to the extent Respondent's motion is based upon failure to serve him personally, the motion is denied because there is no such requirement.
With regard to the adequacy of the description of Respondent in the predicate notice and court papers, under CPLR § 1024, "[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." For the purpose of obtaining jurisdiction, it is sufficient if the caption of the summons or notice of petition describes the party in such a manner that he would have known from the description that he was an intended defendant or respondent. Salerno v Holden (258 AD 50, 15 NYS2d 549 [1st Dep't 1939], aff'd, 284 NY 759 [1940])(caption naming three specific defendants plus "their wives, if any, whose names are unknown to plaintiff" found to be sufficient); Lenox Rd Utica Ave Realty v Spencer (184 Misc 2d 628 [App Term 2nd Jud Dep't 2000]) (reversing lower court which had granted tenant's motion to vacate a default judgment and be restored to possession, and finding the tenant's challenge to the court's jurisdiction to be without merit, where the caption identified the tenant as "John" Spencer rather than "Andy" Spencer "and tenant could not have been confused as to who was meant"); Nationstar Mtge, LLC v Campos (2015 NY Misc LEXIS 2680, 2015 NY Slip Op 31316[U][Sup Ct Qns Co 2015])(court obtained jurisdiction where defendant wife of co-defendant Rafael Campos was named in caption as "Jane" Campos); Tobin v St Paul's Lutheran Evangelical Church (136 Misc 2d 801, 519 NYS2d 93 [Sup Ct NY Co 1987])(court has jurisdiction over defendant named in caption as "John Doe Tree Company" where plaintiff was unaware of the tree company's name at time when claim was interposed).
Respondent asserts in his motion papers that his name is "Sully Manuel Lora" and that the name listed in the caption — "Manuel Lora Davis" — is incorrect. Respondent's Affidavit in Support at ¶ 5. Petitioner's agent asserts that Petitioner "was given limited information regarding the occupants of the subject premises" as the building was acquired from a Public Administrator, Affidavit in Opposition at¶ 8, and that, prior to commencing this proceeding, "agents of the petitioner made a diligent effort to ascertain the names of each of the individuals who reside at the subject premise" and that they "were only able to ascertain the identity of Manuel Lora Davis". Affidavit in Opposition at ¶¶ 4 & 5. Given what appears to be either a two-thirds overlap (comparing "Sully Manuel Lora", the name Respondent asserts in his moving papers, with "Manuel Lora Davis") or a three-quarters overlap (comparing "Sully Manuel Lora Davis", the name Respondent asserted on the record during the conference on September 12, 2016 with "Manuel Lora Davis") plus the inclusion of the address and a "John Doe" in the caption, this court finds that the papers "adequately describe" Respondent, as he is described in such a manner that he had to have clearly known from the caption that he was an intended respondent in this holdover proceeding.
The legal argument propounded by Respondent's counsel consists solely of the assertion that, "It has been held that all occupants who derive their possessory interests from the principal should be made parties to the summary proceeding; otherwise, their eviction under a warrant would be deemed wrongful." Affirmation in Support at ¶ 7. While this statement is true as a general matter, it does not apply herein, where Respondent was in fact named and served with all papers in this proceeding, albeit in a slightly different version of his name along with the "John Doe" nomenclature that is permitted when a petitioner does not know the full and correct names of the occupants of the premises. Neither of the two cases Respondent's counsel cites to, Fults v Munro (202 NY 34 [1911]) and Discala v Facilities Dev Corp (180 Misc 2d 355, 691 NYS2d 229 [Civ Ct Richmond Co 1998]), are on point as they both dealt with eviction proceedings in which the occupants of the premises were not named in any manner whatsoever. Respondent's counsel in his Reply Affirmation at ¶ 6 argues, without citing to any authority, that, "even at best, if the Petitioner were to prevail at trial, the Petitioner would only have a possessory judgment against a 'Manuel Lora Davis' not one against my client, 'Sully Manuel Lora'". In light of the court's ruling, however, Petitioner may seek to amend the caption to reflect Respondent's full correct name and to substitute "Sully Manuel Lora a/k/a Sully Manuel Lora Davis" for "Manuel Lora Davis" and/or "John Doe".
The court in Fults v Munro (202 NY 34 [1911]), a forcible entry and detainer action brought by the leaseholder's assignee (his wife) who was in possession of the premises, held that she "was not a party to the proceeding in which the judgment was rendered, so that she was not bound thereby and the warrant was not good as against her." The case of Discala v Facilities Dev Corp (180 Misc 2d 355, 691 NYS2d 229 [Civ Ct Richmond Co 1998]) involved a holdover proceeding in which the landlord named the government leaseholder as a respondent but completely failed to name the subtenants — the actual residents of the premises - as respondents. The court dismissed the petition and explained, "Since it was the lives of these persons that would be affected by the awarding of possession of the premises to the landlord, it was imperative that these persons receive notice of the proceeding. If the landlord did not know the names of these individual tenants he could have and should have served 'John Doe' notices on them." (180 Misc 2d at 363.)
With regard to the "Notice of Appearance and Verified Answer" which Respondent's counsel included under cover of his Notice of Motion to Dismiss, although unmarked by an exhibit tab and unreferenced in any of the moving papers, the court hereby deems such Answer to be duly served and filed nunc pro tunc. See, e.g., City of New York v Candelario (156 Misc 2d 330, 601 NYS2d 371 [App Term 2nd Dep't 1993], affd in part, revd in part on other grounds 223 AD2d 617, 637 NYS2d 311 [2nd Dep't 1996]), citing Gluck v. Wiroslaw (113 Misc 2d 499, 449 NYS2d 567 [Civ Ct Kings Co 1982]). As explained by the Hon. Sabrina Kraus, "pursuant to RPAPL § 743 the answer in a holdover proceeding is to be asserted or filed 'at the time when the petition is to be heard.' This statute has routinely been interpreted by the Courts to mean that the time for Respondent to file an answer is extended by adjournment of the proceeding unless 'arrangements to the contrary have been made.'" Picken v Staley (2011 NY Misc LEXIS 5910, 2011 NY Slip Op 33237[U] [Civ Ct NY Co May 16, 2011]). See also In-Towne Shopping Centers Co v. Demottie (17 Misc 3d 134[A], 851 NYS2d 70 [App Term 2nd Dep't 2007]) (adjournment to obtain counsel implicitly extends tenant's time to answer). However, in light of the court's ruling as set forth above, the two affirmative defenses are stricken, as is the first counterclaim seeking attorney's fees. CONCLUSION
Petitioner's claim is that Respondent is a squatter, and Respondent asserts that he was the superintendent of the building. Affidavit in Support at ¶ 3. In either case, it is apparent that no lease ever existed between Respondent and Petitioner, or between Respondent and any predecessor-in-interest to Petitioner, and, accordingly, there can be no basis for an award of attorney's fees. "The rule in New York remains that 'attorneys' fees and disbursements are incidents of litigation and the prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties or by statute or court rule'." Glenn v Hoteltron Systems, Inc (74 NY2d 386, 547 NYS2d 816 [1989]), quoting A G Ship Maint Corp v Lezak (69 NY2d 1, 511 NYS2d 216 [1986]).
Accordingly, Respondent's motion to dismiss is denied and the case is restored to the court's calendar on February 3, 2017 at 9:30 am for pre-trial conference.
The court will mail copies of this Decision and Order to the respective counsel for Petitioner and Respondent Sully Manuel Lora a/k/a Sully Manuel Lora Davis, sued herein as "Manuel Lora Davis" and/or "John Doe", as well as a copy to Respondent Goriyda Lora Davis, sued herein as "Jane Doe", at the premises.
This constitutes the Decision and Order of this Court. _________________________ Diane E. Lutwak, Hsg. Ct. J. Dated: Bronx, New York
December 14, 2016