Opinion
041152/2010.
Decided April 22, 2011.
Petitioner was represented by: Juan Restrepo, Novick Edelstein, of counsel to Stein Sheidlower, L.L.P.
Respondent was represented by: Matthew Tropp, Legal Aid Society.
This summary holdover proceeding was commenced by Deutsche Bank National Trust Company, as Trustee of the IndyMac INDX Mortgage Trust 2006-AR25, Mortgage Pass-Through Certificates, Series 2006-AR25 under the Pooling and Servicing Agreement dated July 1, 2006 ("Deutsche Bank") to recover possession of the First floor apartment located at 896 E. 241st Street, Bronx, New York 10466. The petition, notice of petition and notice to quit name Elaine Turner, Percival Turner, Yvette Jeffries, John Doe, Jane Doe, Richard Roe and Cora Coe as respondents. The notice to quit was also addressed to all other persons occupying the entire premises. Petitioner's affidavits of service alleged conspicuous place service of the petition, notice of petition, and notice to quit on Elaine Turner, Percival Turner, Yvette Jeffries, John Doe, Jane Doe, Richard Roe, and Cora Coe.
Respondent (Gerda Southwell), by counsel, moved for dismissal of the instant holdover proceeding pursuant to CPLR § 3211(a)(10) for failure to name a necessary party, and/or CPLR § 3211(a)(7) for failure to state a cause of action, and/or NY RPAPL § 741(4) for failure to name a necessary party, depriving the court of subject matter jurisdiction under NY CPLR § 3211(a)(2) for failure to name or serve Gerda Southwell, the occupant of the subject premises, as a respondent. Respondent further moved to dismiss pursuant to CPLR § 3211(a)(7) for failure to state a cause of action and/or, pursuant to CPLR § 3211(a)(2) for lack of subject matter jurisdiction alleging a defective notice to quit. In the alternative, respondent moved to interpose a late answer under CPLR § 3012(d) and for such other relief the court deems just and proper.
Foreclosure proceedings were commenced in the Supreme Court of the State of New York for Bronx County on March 5, 2008 in the action IndyMac Bank F.S.B. v. Elaine Turner, Percival Turner, IndyMac Bank, FSB and Yvette Jeffries , Index No. 380408/08. A judgment of foreclosure and sale was entered on January 11, 2010, and Anthony J. Centone, Esq. was appointed Referee for the purpose of selling the premises. A Referee's Deed was executed and delivered after sale to Deutsche Bank on March 22, 2010.
Gerda Southwell moved into the subject premises in October, 2008, while the foreclosure was pending. She was not a party to the foreclosure proceeding and was not specifically named in the instant proceeding's notice to quit or petition and notice of petition. Petitioner alleges respondent was served on or about June 1, 2010 by conspicuous place service with a notice to quit dated April 30, 2010. The notice gave termination dates of either June 14, 2010 or September 4, 2010, depending on whether respondent is a "bona fide" tenant based on the Protecting Tenant at Foreclosure Act. The instant holdover was commenced by service of the petition and notice of petition on or around July 23, 2010, and was first scheduled on the court's calendar on August 13, 2010. Gerda Southwell appeared pro-se on August 13, 2010 and consented to being substituted as a respondent in place of "Jane Doe." The proceeding was adjourned to September 8, 2010 for Ms. Southwell to obtain counsel, and further adjourned to September 29, 2010, October 6, 2010, October 21, 2010, November 9, 2010, and November 30, 2010. The Legal Aid Society filed a notice of appearance on behalf of Gerda Southwell on November 30, 2010 and the proceeding was then adjourned to January 14, 2010 for motion practice.
Respondent moves to dismiss on the basis of petitioner's failure to name Gerda Southwell as a necessary party. CPLR § 1001(a) defines a necessary party as "Persons 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; 620 N.Y.S. 2d 914 (Civ. Ct. New York Co., 1994). The court finds that Ms. Southwell is a necessary party as a continuous resident of the premises since October 2008.
Petitioner asserts that Gerda Southwell was properly named as "Jane Doe" on the predicate notice and the petition and notice of petition, as the caption in a proceeding may be readily amended to reflect the identity of an unknown party. Respondent's counsel moves for dismissal arguing that petitioner may not use the designation "John Doe" or "Jane Doe" where the unknown party was known to the petitioner prior to the commencement of the action, or if a diligent attempt by the petitioner to learn the identity of the unknown person would have revealed the party's identity. CPLR § 1024 states that "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".
Petitioner may not designate a party as "John Doe" or "Jane Doe" when there is actual knowledge of the party's identity. "If none of the name 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; 601 N.Y.S. 2d 43 (Civ. Ct. New York Co., 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 , N.Y.L.J. Sept. 15, 1993, p. 25, col. 3 (Civ. Ct. Queens Co.), citing ABKCO Industries v. Lennon , 52 AD2d 435; Capital Resources Corp. v. "John Doe" and "Jane Doe" , N.Y.L.J. June 17, 1992, p. 25, col. 6 (Civ. Ct. Kings Co.).
In the instant case, there has been no evidence or testimony presented to suggest that Petitioner had actual knowledge of the presence or identity of Gerda Southwell. However, petitioner has failed to demonstrate that any effort, let alone a diligent effort, was made to determine the identity(ies) of the occupant(s) of the premises. "It is clearly implicit in CPLR 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." Chavez v. Nevell Mgmt. Co., Inc. , 69 Misc 2d 718; 330 N.Y.S. 2d 890 (Civ. Ct. New York Co., 1972); 2 Weinstein-Korn-Miller, New York Civ. Prac., par. 1024.04. "Petitioner by means of the CPLR is duty bound not to proceed with or to permit an eviction proceeding to go forward in the name of a John Doe or Jane Doe' when they could with diligence find out the true name, or actually have knowledge of the true name or names." Green Point Savings Bank v. John and Jane Doe , N.Y.L.J. July 12, 1995, p. 31, col. 2; See Teachers College v. Walterding , 351 N.Y.S. 2d 587 (App. Term, 1st Dept, 1974) and Chavez v. Nevell Mgmt. Co. , supra. Petitioner must further establish that a diligent effort has been made to ascertain the identity of the party. "It must be demonstrated that the persons named as unknown are actually unknown. To make that showing, counsel should present an affidavit stating that a diligent inquiry has been made to determine the names of such parties." Capital Resources Corp. v. John Doe , 154 Misc 2d 864; 586 N.Y.S. 2d 706 (Civ. Ct. Kings Co., 1992); Chavez v. Nevell Mgmt. Co. , supra; 2 Weinstein-Korn-Miller, NY Civ. Prac., par. 1024.04.
Petitioner has presented no evidence or testimony to demonstrate a diligent effort was made to ascertain the identity(ies) of the occupant(s). This is a two-family dwelling where the respondent has resided consistently since October 2008. In a two-family home the identity of any occupants' could have been ascertained with a minimal amount of effort. Petitioner could have knocked on Ms. Southwell's door, asked the prior owners if anyone else resided in the building, or checked the names on the mailboxes. Petitioner produced no evidence that any effort was made at all. "A diligent effort to learn the party's name is a condition precedent to the use of CPLR § 1024, which should therefore be turned to only as a last resort." George Tut Company v. Jane Doe , 2008 Slip Op 28264; 20 Misc 3d 815; 862 N.Y.S. 2d 428 (Civ. Ct. Kings Co., 2008); Siegel, NY Prac. § 188 at 304 (3d ed). "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 1024 and the petition is rendered fatally defective as to that party." Pinnacle Bronx East v. Bowery Residents Committee Inc. , 2006 NY Misc. LEXIS 4025; 235 N.Y.L.J. 60 (Civ. Ct. Bronx Co., 2006), citing Triborough Bridge and Tunnel Auth. v. Wimpfheimer , 165 Misc 2d 584; 633 N.Y.S. 2d 695 (App. Term, 1st Dept. 1995); First Fed. Savings and Loan Assoc. of Rochester v. Souto , 158 Misc 2d 219; 601 N.Y.S. 2d 43 (Civ. Ct. New York Co., 1993). Accordingly, respondent's motion is granted and the petition is dismissed without prejudice. As the proceeding is dismissed on the basis of failure to name a necessary party, the court need not address the additional grounds raised for dismissal.
This is the decision and order of the Court.