Opinion
No. 570956/11.
2013-01-30
FS 45 TIEMANN PLACE LLC, Petitioner–Landlord v. Juana GOMEZ, Respondent–Tenant–Respondent, and “John Doe” and/or “Jane Doe.”, Respondents–Undertenants.
Petitioner-landlord appeals from an order of the Civil Court of the City of New York, New York County (Arlene H. Hahn, J.), dated October 26, 2011, which granted the respondents' joint motion to dismiss the petition in a holdover summary proceeding and denied, as moot, landlord's cross motion for leave to conduct discovery and for interim use and occupancy.
Present: TORRES, J.P., SCHOENFELD, SHULMAN, JJ.
PER CURIAM.
Order (Arlene H. Hahn, J.), dated October 26, 2011, reversed, with $10 costs, respondents' motion denied, petition reinstated, and matter remanded to Civil Court for further proceedings.
Respondents' CPLR 3211 motion to dismiss the holdover petition should have been denied. The single correspondence sent by petitioner-landlord's agent to tenant's daughter, respondent Mayuri Gomez—which, at most, acknowledged Mayuri's indeterminate right of occupancy based on her “recent[ ] move[ ]” into the stabilized apartment premises—did not vitiate the previously and timely served notice of nonrenewal or otherwise require dismissal of landlord's facially meritorious nonprimary residence claim against tenant. Any occupancy rights Mayuri may have acquired were subordinate to the tenancy rights of her mother, the record tenant ( see 170 W. 85th St. Tenants Assn. v. Cruz, 173 A.D.2d 338 [1991] ), who never surrendered possession, and who, in fact, interposed an answer disputing the allegations of nonprimary residency.
Nor was dismissal required by the failure to join Mayuri, since she is not a necessary party to the proceeding whose presence is indispensable to providing complete relief as between landlord and tenant ( see Triborough Bridge & Tunnel Auth. v. Wimpfheimer, 165 Misc.2d 584 [1995] ). In any event, Mayuri intervened in this proceeding by filing an answer ( seeRPAPL 743).
In reinstating the petition, we do not pass upon landlord's application for discovery and interim use and occupancy, issues not reached below. Our disposition is without prejudice to landlord's right to renew its application for such relief in Civil Court.