Opinion
Index No. L&T 305489/23
12-21-2023
B&S Duo Realty LLC, Petitioner, v. Safwan Ahmed Gazali, JOHN DOE, and JANE DOE, Respondents.
Sam Matthews, Esq. Goldberg, Lustig & Steckler, PLLC Brooklyn, NY Attorneys for petitioner Akeem Amodu, Esq. The Legal Aid Society Kew Gardens, NY Attorneys for movant Khaled Ibrahim
Unpublished Opinion
Sam Matthews, Esq. Goldberg, Lustig & Steckler, PLLC Brooklyn, NY Attorneys for petitioner
Akeem Amodu, Esq. The Legal Aid Society Kew Gardens, NY Attorneys for movant Khaled Ibrahim
Clinton J. Guthrie, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of movant Khaled Ibrahim's motion to dismiss pursuant to CPLR §§ 3211(a)(7) and 3211(a)(10) to dismiss, or in the alternative, to interpose an amended answer:
Papers/Numbered
Notice of Motion & Affirmation/Affidavit/Exhibits Annexed 1 (NYSCEF # 6-12)
Affirmation in Opposition & Exhibits Annexed 2 (NYSCEF # 15)
Replying Affirmation 3 (NYSCEF # 16)
Upon the foregoing cited papers, the decision and order on Khaled Ibrahim's motion is as follows.
PROCEDURAL HISTORY
This summary nonpayment proceeding was filed in March 2023. On April 10, 2023, unnamed respondent Khaled Ibrahim Hussein (presumably movant herein) filed a pro se answer. On April 16, 2023, The Legal Aid Society filed a notice of appearance for John Doe (now identified as movant Khaled Ibrahim).
The case was transferred out of the resolution Part on August 9, 2023. After the case was assigned to this trial Part, the instant motion to dismiss was filed by The Legal Aid Society on behalf of Mr. Ibrahim. The motion proceeds on two (2) bases: (1) that petitioner failed to name a necessary party; and (2) that petitioner improperly used a fictitious name to describe the movant Khaled Ibrahim. Opposition and reply papers were filed and the court heard argument on the motion on December 18, 2023. The court reserved decision upon the conclusion of the argument.
DISCUSSION
The court first addresses respondent's argument that the petition is defective because petitioner failed to name a necessary party. A necessary party is one "who ought to be [a party] 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." CPLR 1001(a). It is well established that a subtenant is not a necessary party to a summary proceeding, even if he or she may be a proper party. See e.g. FS 45 Tiemann Place LLC v. Gomez, 38 Misc.3d 135[A], 2013 NY Slip Op 50132[U] [App Term, 1st Dept 2013]; Triborough Bridge & Tunnel Auth. v. Wimpfheimer, 165 Misc.2d 584, 586 [App Term, 1st Dept 1995]; Parkash 2125 LLC v. Galan, 61 Misc.3d 502, 511 [Civ Ct, Bronx County 2018]. To the extent that movant alleges that he "rents a room" in the subject apartment (Ibrahim Aff., ¶ 2), he acknowledges that he is a subtenant. As a subtenant must be served with a notice of petition and petition or joined as a party during the pendency of the proceeding for a warrant to be effective against him or her (see 170 W. 85th St. Tenants Assn. v. Cruz, 173 A.D.2d 338, 339-340 [1st Dept 1991]), the court finds that movant would be a proper but not necessary party in this summary nonpayment proceeding brought against the tenant of record (cf. 265 Realty LLC v. Trec, 39 Misc.3d 150[A], 2013 NY Slip Op 50974[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [Summary nonpayment proceeding only maintainable against a tenant with a rental agreement in effect at the time of commencement]). Accordingly, the court denies the branch of respondent's motion seeking to dismiss the proceeding for failure to name a necessary party.
However, the branch seeking dismissal on the basis of misuse of CPLR § 1024 is granted. 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." The Appellate Division, Second Department has held that "parties are not to resort to the 'Jane Doe' procedure unless they exercise due diligence... to identify the defendant by name and, despite such efforts, are unable to do so. Any failure to exercise due diligence to ascertain the 'Jane Doe's' name subjects the complaint to dismissal as to that party." Bumpus v. New York City Tr. Auth., 66 A.D.3d 26, 29-30 [2d Dept 2009] [internal citations omitted]; see also Wilmington Trust, N.A. v. Shasho, 197 A.D.3d 534, 536 [2d Dept 2021]; Capital Resources Corp. v. Doe, 154 Misc.2d 864, 865 [Civ Ct, Kings County 1992] ["It is implicit in section 1024 that the unusual authority it sanctions should not be availed of in the absence of a genuine effort to learn the true name of the party."].
Here, movant asserts in an affidavit that he rents a room at the subject premises, has had interactions with petitioner's superintendent, and was present when the predicate notice was served (Ibrahim Aff., ¶ 2, 3, 5). He also annexes his NYC ID showing the subject premises address. Petitioner's opposition consists of an attorney affirmation and two exhibit (a rent breakdown and renewal lease that are unauthenticated). Although the affirmation provides that the attorney is "fully familiar with the facts and circumstances of the case," there is no indication that the attorney has actual knowledge of movant's occupancy in the subject premises or any efforts to learn of the fictitiously-named respondents' identities before the commencement of this proceeding. Therefore, the attorney affirmation has no probative value (see Wilmington Trust, N.A. v. Wei P. Teo, 204 A.D.3d 735, 736 [2d Dept 2022]).
On a CPLR § 3211(a)(7) motion for failure to state a cause of action, the petition "is to be afforded a liberal construction, the facts alleged are presumed to be true, the [petitioner] is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory." Watts v. City of New York, 186 A.D.3d 1577, 1578 [2d Dept 2020]. When evidentiary material is offered and considered on such a motion, "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one[.]" Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977]. Here, to the extent that movant has submitted an affidavit and identification indicating that he was occupying the subject apartment at the time of commencement of this proceeding and was improperly named and served as John Doe, it was incumbent upon petitioner to demonstrate that it made "timely efforts to identify" the individual that it named fictitiously (Comice v. Justin's Restaurant, 78 A.D.3d 641, 642 [2d Dept 2010]; see also RR Reo II, LLC v. Omeje, 33 Misc.3d 128 [A], 2011 NY Slip Op 51848[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; George Tut & Co. v. Doe, 20 Misc.3d 815, 820 [Civ Ct, Kings County 2008] ["A genuine effort must be made to learn the true name of the party and... an affidavit should be presented stating that a diligent inquiry has been made to determine said name."]).
As petitioner utterly failed to come forth with any affidavit or probative evidence evincing efforts to learn of the identity of John Doe before commencing this proceeding, movant's motion is granted (see CPLR § 1024; Bumpus, 66 A.D.3d at 29-30). The proceeding is hereby dismissed against John Doe and no warrant in this proceeding shall be effective against movant Khaled Ibrahim (see RPAPL § 749(1); Galan, 61 Misc.3d at 514).
CONCLUSION
For the foregoing reasons, movant's motion is granted to the extent that the proceeding is dismissed against John Doe pursuant to CPLR§ 3211(a)(7). The branch of the motion seeking the interposition of an amended answer is denied as moot. Petitioner may seek a default judgment against the non-appearing respondents via the warrant clerk (RPAPL § 732(3)), subject to the limitation that any warrant shall not be effective against Khaled Ibrahim. This Decision/Order will be filed to NYSCEF.
THE FOREGOING CONSTITUTES THE DECISION AND ORDER OF THIS COURT.