Opinion
9998/2019
10-28-2019
BRONX PARK PHASE III PRESERVATION, LLC, Petitioner v. Fatoumata TUNKARA, Respondent.
Gutman, Mintz, Baker & Sonnenfeldt, LLP, for the Petitioner New York Legal Assistance Group, for nonparty occupant — Hawa Sidibe
Gutman, Mintz, Baker & Sonnenfeldt, LLP, for the Petitioner
New York Legal Assistance Group, for nonparty occupant — Hawa Sidibe
Karen May Bacdayan, J.
PROCEDURAL HISTORY AND ARGUMENTS
This is a holdover proceeding brought by Petitioner, Bronx Phase III Preservation, LLC against Respondent, Fatoumata Tunkara ("Tunkara"), based on her alleged failure to complete her annual income recertification which is a requirement of her tenancy. Tunkara is the tenant of record at 365 East 185th Street, Apt. 209, Bronx, New York, 10458. Tunkara has never appeared in this proceeding and it is not disputed that she has not resided in the apartment for many years, although she has never formally surrendered the premises.
The premises is described in the Petition as state-administered Mitchell Lama housing which also is subject to the federal Low Income Housing Tax Credit Program. (Petition at 6.)
On the first court date, Hawa Sidibe ("Sidibe") appeared and the proceeding was adjourned for her to seek counsel. Sidibe is an unnamed occupant of the apartment who claims no right to succeed to the lease for the premises. New York Legal Assistance Group appeared on her behalf on April 1, 2019 and the current motion ensued.
Sidibe moves for dismissal of the proceeding pursuant to CPLR 3211 (a) (7) on the basis that Petitioner has failed to state a cause of action and for misuse of CPLR 1024 ("Unknown Parties"). In the alternative, Sidibe asks the Court to hold that any warrant of eviction that issues against Tunkara "is unenforceable as against Ms. Sidibe and her family, and [order] the Petitioner to ensure that any such warrant is not executed as to Ms. Sidibe and her family."
Although Sidibe's notice of motion asks to dismiss the proceeding pursuant to CPLR 3211 (a) (7), there is no argument made in counsel's supporting affirmation that Petitioner has not stated a cause of action. Instead, counsel's affirmation argues that the petition should be dismissed pursuant to CPLR 3211 (a) (10) because Sidibe was a necessary party to the proceeding on the basis that she has resided in the apartment since 2015 with Petitioner's knowledge and, therefore, "has an independent possessory interest to the premises." (Sidibe counsel's aff at 25.) Respondent has since withdrawn this branch of the motion. (Sidibe aff in reply at 3 ["Ms. Sidibe does hereby withdraw the prong of the motion seeking dismissal pursuant to CPLR 3211 for failure to name a necessary party ...."].) Because whether Respondent intended to withdraw any 3211 (a) (7) application is not entirely clear, the court will address it in this decision.
Petitioner opposes Sidibe's motion to dismiss on the basis that it was not required to name her in this proceeding from the outset, and cross-moves to her motion seeking to now "amend the caption and all papers in this proceeding, nunc pro tunc , to include the occupant, Hawa Sidibe, as a Respondent and party to the proceeding" for the sole purpose of being able to execute the warrant as against her.
The proceeding was adjourned several times in anticipation of a settlement which ultimately could not be reached. The motion was submitted on October 24, 2019 and decision was reserved. At Petitioner's request, an inquest against Tunkara was held that same day and the Court granted a final judgment of possession against her.
DISCUSSION
Sidibe's motion to dismiss the proceeding based on Petitioner's failure to state a cause of action is denied. The Petitioner has stated a cause of action as against Tunkara, the tenant of record and named party herein. Indeed, a final judgment of possession has entered against Tunkara based on Petitioner having successfully established to the Court its prima facie case against her at inquest. Joinder of Sidibe for the reasons urged in Petitioner's cross-motion is also not proper and Petitioner's cross-motion is likewise denied for the following reasons.
Sidibe was not named in this proceeding, even as a "Jane Doe." Petitioner claims that it did not know of Sidibe's presence in the apartment until after commencement of this proceeding. This claim is utterly refuted by Sidibe's attachments to her motion, the authenticity of which Petitioner does not dispute. Sidibe attaches a letter written on August 26, 2015 by Fatoumata Tunkara addressed to the attention of "Bronx Park PHSE III" which "[authorizes] Hawa Sidibe to stay in [her] apartment while [she] is away in Cincinnati, OH." (Respondent's exhibit A.) The letter is stamped as received by Bronx Phase III Preservation LLC on August 26, 2015. (Id. ) Sidibe also attaches a letter dated October 6, 2016 from B/S/R Management Corp., whom Petitioner does not dispute was its management company at the time, indicating that the household composition of 365 East 184th Street, Apt. 209, Bronx, New York 10458 includes Hawa Sidibe. (Respondent's exhibit B.) This letter is also stamped by Bronx Phase III Preservation, LLC. (Id. ) Also, in 2016, Sidibe credibly avers, and it is not disputed, that she submitted an apartment application to the management company at the time, which application was abandoned after a change in management. (Sidibe affidavit at 12.) At Exhibit C of her motion, Sidibe attaches an undated letter from Langsam Property Services Corp., whom Petitioner does not dispute was its management company at the time, indicating that Hawa Sidibe is the "head of household" of the premises located at 365 East 184th Street, Apt. 209, Bronx New York 10458. (Respondent's exhibit C.) It is also not disputed that in August 2017, the office of councilman Ritchie Torres advocated with Petitioner's management company at the time to have Sidibe added to the lease for the subject premises. (Respondent's exhibit D.)The Court finds that Petitioner had at the very least constructive knowledge of her presence in the apartment and of her full name, and, based on Sidibe's numerous and undisputed attachments to her motion, any claim that Petitioner did not have actual knowledge of Sidibe's occupancy of the apartment is extremely dubious. As such, if Sidibe had been named as "Jane Doe," she would have had a meritorious argument based on misuse of CPLR 1024 ("Unnamed Parties"). ( Tucker v. Lorieo , 291 AD2d 621, 621 [1st Dept 2002] ["To use the John Doe method of CPLR 1024 it must be shown that plaintiff made genuine effort(s) to ascertain the defendants' identities ...."].) Any argument in opposition to such a motion that Petitioner had exercised due diligence to discover Sidibe's presence, and to accurately name and serve her in order to accord her due process of law (see 170 W. 85th St. Tenants Assn. v. Cruz , 173 AD2d 338 [1st Dept 1991] ; see also Parkash 2125 LLC v. Galan , 61 Misc 3d 502 [Civ Ct, Bronx County 2018] ), would have been specious at best. Petitioner exercised no diligence whatsoever in order to obtain jurisdiction over any other occupants of the apartment, known or unknown, and its inaction cannot now be excused by allowing it to amend the caption to name an individual who was denied due process as a result of a blatant lack of care. (Independence Owners LLC v. Guerrero , Civ Ct, NY County, Nov. 16, 2018, Elsner, J. index No. 65027/18 ["as an occupant of the premises with no familial relation to [the tenant], [the occupant], was at a minimum entitled to be named as ‘Jane Doe.’ Petitioner's failure to do so militates against amendment of the Petition."]; see also S Realty v. Taconic Innovation , 64 Misc 3d 1229[A], 2019 NY Slip Op 51369[U] [Mount Vernon City Ct 2019].)
For this reason, Respondent's motion to dismiss the proceeding for misuse of CPLR is also denied.
Although not directly applicable to this proceeding because of its commencement date in early 2019, the holdings of Cruz and Parkash have since been codified by the state legislature through the enactment of the Housing Stability and Tenant Protection Act on June 14, 2019. The Act amends the relevant portions of the RPAPL to allow, by warrant of eviction, only removal of "all persons named in the proceeding ." (RPAPL 749, as amended by L 2019, ch 36, part M, § 19 [June 2019] [emphasis added].) In doing so, the legislature made clear an intent to ensure that occupants are protected from displacement by careless pleading — a purpose which is also served by this Decision and Order regarding Hawa Sidibe.
Moreover, the proceeding has concluded with the entry of a final judgment against Tunkara, the sole named party, after inquest. Especially under the facts and circumstances of this case, amendment of the judgment to add Sidibe as a respondent will not lie. (See e.g. Henry v. Almanacid , 13 Misc 3d 132[A], 2006 NY Slip Op 51878[U] [App Term, 9th & 10th Jud Dists 2006] [upholding denial of landlord's motion to add a party respondent on the basis that the proceeding had concluded with the entry of a final judgment].)
Contrary to Petitioner's contention, it will suffer no "great prejudice" by being required to properly obtain jurisdiction over the occupants of the subject premises. Having obtained a final judgment of possession against Fatoumata Tunkara, Petitioner may legally proceed against Hawa Sidibe as a licensee after execution of the warrant.
CONCLUSION
Accordingly, it is hereby:
ORDERED that Sidibe's motion to dismiss pursuant to CPLR 3211 (a) (7) is DENIED;
ORDERED that Sidibe's motion to dismiss pursuant to CPLR 1024 is DENIED;
ORDERED that Petitioner's cross-motion to join Sidibe as a respondent and party to this proceeding nunc pro tunc is DENIED; and
ORDERED that the Petitioner shall instruct its Marshal that while it is entitled to take legal possession of the premises from Fatoumata Tunkara, it has no such right as against Hawa Sidibe. Petitioner or its attorney shall contact Sidibe upon issuance of the warrant of eviction and prior to any eviction to ensure that Sidibe is present at the time legal possession is taken from Tunkara. She is to be given a key immediately when the locks are changed.
This constitutes the Decision and Order of this Court.