Opinion
No. 2023-51355
12-11-2023
Julio Morel, Petitioner, v. Awilda Aviles and ANGIE a/k/a ANGELA AVILES, Respondents.
The Law Offices of Albert Ian Morse, PLLC Attn: Albert Ian Morse, Esq. Attorneys for Petitioner Legal Services of the Hudson Valley Attn: Brett Broge, Esq. Attorneys for Respondents
Unpublished Opinion
The Law Offices of Albert Ian Morse, PLLC Attn: Albert Ian Morse, Esq. Attorneys for Petitioner
Legal Services of the Hudson Valley Attn: Brett Broge, Esq. Attorneys for Respondents
RICHARD J. GUERTIN, J.
INTRODUCTION
This is a holdover summary proceeding to recover possession of real property located at 52 Grand Avenue, Unit 3, Middletown, New York 10940 ("the Property"); the proceeding is brought by the Petitioner against the Respondents; Respondent Awilda Aviles will be referred to as "Awilda Aviles," and Respondent Angie a/k/a Angela Aviles will be referred to as "Angie Aviles." The Petitioner, by his attorney, filed a Notice of Petition and Petition with the court on August 31, 2023, and the court set September 12, 2023 as the return date. On September 12, 2023, the Petitioner appeared in court by counsel, and the Respondents appeared pro se but requested an adjournment to seek counsel. On September 26, 2023, the adjourned date, the Petitioner again appeared by counsel, and the Respondents appeared with Brett Broge, Esq. from Legal Services of the Hudson Valley. Attorney Broge requested the opportunity to submit a motion to dismiss the Petition, and the Court set down a schedule for the submission of the motion, any opposition papers or cross motion by the Petitioner, and any reply papers by the Respondents, with the motion deemed fully submitted by October 17, 2023. The Court has received all papers from the parties (including an Affirmation in Reply from the Petitioner's counsel on the Petitioner's cross motion for summary judgment, received by the court on October 18, 2023), the Respondents' motion and the Petitioner's cross motion have been fully submitted, and the motion and cross motion are now ready for decision.
The Court read the following papers on the Respondents' motion to dismiss and the Petitioner's cross motion for summary judgment:
Notice of Respondents' Motion to Dismiss. 1
Affirmation in Support by Attorney Broge ("Broge Affirmation") 2
Notice of Petitioner's Cross Motion for Summary Judgment 3
Affirmation by Albert Ian Morse, Esq. ("Morse Affirmation") 4
Reply Affirmation by Attorney Broge ("Broge Reply Affirmation") 5
Affidavit of Respondent ("Awilda Aviles Affidavit") 6
Affirmation in Reply by Albert Ian Morse, Esq. ("Morse Reply Affirmation") 7
THE PARTIES' ARGUMENTS
The Respondents, by counsel, move to dismiss the Petition for lack of jurisdiction over the Respondents based on the following: 1) the Petition served on the Respondents failed to comply with RPAPL § 721 and CPLR Rule 3021 rules for verification; and 2) Angie Aviles was never served with a predicate notice terminating her month to month lease. The Petitioner cross moves for summary judgment against both Respondents. The Court will summarize the parties' arguments and responses below.
The Broge Affirmation notes the Petition in this case is verified by the attorney for the Petitioner, but it does not state why the attorney verified the Petition instead of the Petitioner as required by CPLR Rule 3021. As a result, according to the Broge Affirmation, the verification does not comply with the requirements of RPAPL §§ 721 and 741, CPLR § 3020, and CPLR Rule 3021 and must be dismissed. The Broge Affirmation also notes that only Awilda Aviles appears to have been served with the requisite predicate notice terminating the tenancy, not Angie Aviles, which requires dismissal of this action at least with respect to Angie Aviles.
The Broge Affirmation further observes that, prior to the filing of this action, the Petitioner brought a holdover petition against only Awilda Aviles.
The Court takes judicial notice of that previous action, including the fact that the Court dismissed the previous action without prejudice because the Petition in that action was signed and verified by the attorney for the Petitioner on July 5, 2023, which was prior to July 12, 2023, the purported date on which Awilda Aviles' tenancy ended pursuant to a ninety day notice of termination allegedly served on April 13, 2023.
The Morse Affirmation was offered both in opposition to the Respondents' motion to dismiss and in support of the Petitioner's cross motion for summary judgment. The Morse Affirmation disputed the Respondents' claim that failure to state why the Petitioner's attorney verified the Petition instead of the Petitioner required dismissal of this action. The Morse Affirmation observed that various cases determined that the failure to state why the Petitioner did not verify the Petition is something that is amendable and does not require dismissal.
With respect to whether the predicate termination notice was served on Angie Aviles, the Morse Affirmation claims Angie Aviles' "true and full legal name was unknown to the Petitioner at the time of the NINETY (90) Day Notice to Quit," but that was remedied when the termination notice was addressed to "'any other occupants of 52 Grand Avenue, Unit 3'" (Morse Affirmation, paragraph 21) and further claims that the CPLR allows the use of fictitious names if the real name or identity is unknown. The Morse Affirmation also claims Angie Aviles "had actual knowledge that the notice intended to bind her since it included the language 'any other occupants'" (Morse Affirmation, paragraph 25), and as a result, Angie Aviles was properly served with the predicate notice.
With respect to the Petitioner's cross motion for summary judgment, the Morse Affirmation claims there is no material issue of fact as to whether Awilda Aviles was served with the ninety day termination notice, and that upon information and belief she still resides at the Property.
With respect to Angie Aviles, the Morse Affirmation claims there is no issue of fact regarding service of the ninety day notice on Angie Aviles based on the use of the fictitious name or reference to "any other occupants of 52 Grand Avenue, Unit 3." The Morse Affirmation repeats the claim that Angie Aviles' true and full name was unknown to the Petitioner at the time of the service of the ninety day notice, but that Angie Aviles had actual knowledge of the service of the ninety day notice and that, upon information and belief, she still resides at the Property.
There is nothing in the Morse Affirmation indicating why the Petitioner, who presumably had and has personal knowledge of the facts recited by the Morse Affirmation, did not submit an affidavit under the Petitioner's own name but instead relied on an Affirmation by the Petitioner's attorney. There is nothing indicating that the Petitioner's attorney had or has actual and personal knowledge of some, if not all, of the salient and historical facts of the parties' relationship that are listed in the Morse Affirmation and in the Morse Reply Affirmation.
The Awilda Aviles Affidavit, in response to the Petitioner's cross motion for summary judgment, states that she and her daughter (Angie Aviles) were month to month tenants since they moved in to the Property, and that the "Petitioner has always been aware of the identities of both my daughter and I, as both of our names have been placed [on] the signed rental receipts" (Awilda Aviles Affidavit, paragraph 3). Attached to the Awilda Aviles Affidavit are copies of rental receipts (from December 2022 to April 2023) signed by the Petitioner listing both Awilda Aviles and Angie Aviles as tenants . The Awilda Aviles Affidavit also indicates that Awilda Aviles spoke with a City of Middletown Code Enforcement Officer in March 2023 regarding repairs that were not being done at the Property and the fact that there was an issue with the Petitioner's rental permit. As a result, according to the Awilda Aviles Affidavit, the City of Middletown violated the Petitioner for non-compliance with rental permit requirements. The Awilda Aviles Affidavit asserts the Petitioner retaliated against the Respondents for their actions involving the City of Middletown Code Enforcement Officers by serving a termination notice on Awilda Aviles.
The Morse Reply Affirmation does not mention or address the rental receipts.
The Broge Reply Affirmation addresses the verification issue by noting the Petitioner has not made any effort to seek leave to amend the Petition. In addition, the Broge Reply Affirmation observes that RPL § 223-b (1) (a) prohibits a landlord from serving a termination notice in retaliation for good faith complaints by a tenant to enforce rights under a lease, and that if a landlord commenced a holdover proceeding against a tenant within one year after the tenant exercised such rights, there is a rebuttable presumption that the landlord's action was retaliatory (RPL § 223-b [5] [a]).
The Broge Reply Affirmation also asserts that Angie Aviles was not unknown to the Petitioner, and that the Morse Affirmation merely contains conclusory allegations that Angie Aviles' real name was unknown. As a result, she was entitled to an individualized notice of termination.
Finally, the Morse Reply Affirmation, in an attempt to rebut the Respondents' arguments, recites a number of purported facts regarding the Petitioner and his alleged actions with respect to the Property and the tenancy of the Respondents, but the Morse Reply Affirmation does not set forth how or if the attorney for the Petitioner had or has personal knowledge of the facts averred in the Morse Reply Affirmation, and it fails to explain why the Petitioner did not offer his own Affidavit in reply to the Respondents' arguments.
DISCUSSION
A. Plaintiff's motion for summary judgment
In order for a party "'[t]o obtain summary judgment it is necessary that the movant establish his [or her] cause of action or defense "sufficiently to warrant the court as a matter of law in directing judgment" in [the movant's] favor [citation omitted], and [the movant] must do so by tender of evidentiary proof in admissible form'" (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). "Summary judgment is a drastic remedy, to be granted only where the moving party has 'tender(ed) sufficient evidence to demonstrate the absence of any material issues of fact' [citation omitted] and then only if, upon the moving party's meeting of this burden, the non-moving party fails 'to establish the existence of material issues of fact which require a trial of the action' [citation omitted]" (Vega v Restani Construction Corp., 18 N.Y.3d 499, 503 [2012]). The party "opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient [citation omitted]" (Zuckerman at 562).
In considering a decision on a motion for summary judgment, "facts must be viewed 'in the light most favorable to the non-moving party' [citation omitted]" (Vega at 503). The court's role on a summary judgment motion "is not to resolve issues of fact or to determine matters of credibility but merely to determine whether such issues exist [citations omitted]" (Roth v Barreto, 289 A.D.2d 557, 558 [2d Dept 2001]; accord Vega at 505; see also David Paul Horowitz and Lukas M. Horowitz, New York's Credibility Problem: Part One, NYLJ, July 15, 2019).
In the instant case, and viewing the facts underlying the motion for summary judgment in the light most favorable to the Respondents (the non-moving party), the Court finds there is a disputed and triable issue of fact as to whether the Petitioner knew the actual identity of Angie Aviles prior to issuance of the ninety day notice of termination, which impacts the alleged service of the ninety day notice of termination on Angie Aviles. There is also a disputed and triable issue of fact as to whether the Petitioner caused the notice of termination to be (allegedly) served on the Respondents in retaliation for complaints made by Awilda Aviles to the City of Middletown Code Enforcement Office. Furthermore, CPLR Rule 3212 (b) notes that "[a] motion for summary judgment shall be supported by affidavit... by a person having knowledge of the facts" at issue in the action. The Morse Affirmation and the Morse Reply Affirmation both attempt to address the purported facts at issue in this action, but both affirmations lack statements of fact from a person with actual knowledge of what those facts were or are; at best, what the Petitioner's counsel offers in both affirmations is hearsay. There is nothing offered to explain why the Petitioner, who likely does have personal knowledge of the facts underlying this action, did not offer his own Affidavit in support of the cross motion for summary judgment. As noted by the court in Zuckerman at 563, the "bare affirmation of [an] attorney who demonstrated no personal knowledge" of the facts underlying an action "is without evidentiary value and thus unavailing [citations omitted]". Speculation by a party's attorney as to what may have occurred "is patently inadequate to establish the existence of a factual issue" (id.) (see also Vermette v Kenworth Truck Co., 68 N.Y.2d 714, 717 [1986]). In addition, summary judgment "'should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable' [citations omitted]" (In re New York City Asbestos Litigation, 33 N.Y.3d 20, 25 [2019]).
The Court, at this juncture, cannot speculate as to some of the critical facts underlying this action and will not do so. Because the Petitioner did not "'tender... evidentiary proof in admissible form'" (Zuckerman at 562), the Petitioner has not met his initial burden to convince the Court to grant summary judgment. Furthermore, there appear to be genuine issues of fact that have not been resolved by the papers submitted to the Court. It is not the Court's role, at this stage of the action, to judge the credibility of the Respondents' assertions in opposition to the Petitioner's cross motion for summary judgment; the fact that those assertions are made and may or may not be credible, however, do raise issues of material fact that would have to be resolved at a trial. As a result, the Petitioner's cross motion for summary judgment is denied.
As noted in Section C below, however, a trial is not necessary.
B. The verification of the Petition
Verification of a pleading by an attorney is allowed under RPAPL § 741 and CPLR § 3020, but in doing so an attorney must comply with the requirements of CPLR Rule 3021 (see Giambra v Commissioner of Motor Vehicles of the State of New York, 46 N.Y.2d 743,745 [1978]; see also Hablin Realty Corp. v McCain, 123 Misc.2d 777, 778 [App Term, 1st Dept, 1984]). CPLR Rule 3021 provides that if a verification "is made by a person other than the party, he must set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge and the reason why it is not made by the party" (emphasis supplied). As noted by the court in Giambra, in such cases "there must be careful compliance with the mandates of CPLR 3021" (Giambra at 745). A pleading verified without explanation by someone other than a party, however, is not a jurisdictional defect. "[T]he recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient 'with due diligence' returns the petition with notification of the reason(s) for deeming the verification defective (CPLR 3022)" (Miller v Board of Assessors, 91 N.Y.2d 82, 86 [1997]). The court in Aviles v Santana (56 Misc.3d 1206 [A], 2017 NY Slip Op 50887[U], *3 [Civ Ct, Bronx County 2017]) found that when the tenant in a holdover action retained an attorney and that attorney promptly submitted a motion challenging the verification, that satisfied the "due diligence" requirement and the challenge to the verification was timely ( but see Knoll Manor Associates of NY v Goldstein, 73 Misc.3d 138 [A], 2021 NY Slip Op 51158[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2021][due diligence under CPLR Rule 3022 "has been interpreted to mean within 24 hours of the receipt of the defective pleading"]). Additionally, the party submitting the improperly verified pleading can be given the opportunity to amend the verification, rather than dismissing the pleading in its entirety (see Aviles, 2017 NY Slip Op 50887[U], *5; Hablin Realty Corp. at 778).
The Miller court, in footnote 3, noted that the Court of Appeals "has not employed a specific time period to measure due diligence... [although some] lower courts have defined due diligence to mean within 24 hours... [and S]ome courts have measured due diligence according to the particular circumstances of the case" (citations omitted).
Based on the above, if this action were allowed to be continued, it would be more appropriate to allow the Petitioner to submit an amended verification of the Petition rather than dismissing the action based on an improperly verified Petition. The portion of the Respondents' motion seeking dismissal of the Petition based on an improperly verified Petition is denied.
C. The purported predicate termination notice and alleged service of the predicate termination notice, and the Notice of Petition and Petition, on the Respondents
A notice of non-renewal of a residential tenancy (in other words, a notice terminating a tenancy) must comply with RPL § 226-c. Under Section 226-c, a landlord must give written notice to a tenant if the landlord chooses not to renew that tenant's tenancy. Section 226-c (2) (a) states that "the required notice shall be based on the cumulative amount of time the tenant has occupied the residence or the length of the tenancy in each lease, whichever is longer" (emphasis supplied). Section 226-c, in subdivisions 2 (b), 2 (c), and 2 (d), require the notice to be at least thirty days, sixty days, or ninety days, respectively, depending on the length of time "the tenant" has occupied the dwelling unit.
In this action, according to paragraph 4 of the Petition, the Respondents "entered into possession under an oral rental agreement made at least three (3) years ago between Respondents, as Tenants, and Petitioner, as Landlord." As a result, any notice terminating the Respondents' tenancy would have to be given at least ninety days prior to the termination date.
As noted in the Respondents' motion papers, the Petitioner in this action commenced a previous holdover summary proceeding against only Awilda Aviles , based on a Ninety Day Notice to Quit addressed to "AWILDA AVILES and any other occupants of 52 Grand Avenue, Unit 3, Middletown, New York 10940;" the ninety day notice was dated April 13, 2023 and was allegedly served on Awilda Aviles on April 13, 2023 by conspicuous place posting and by first class mail and certified mail. According to the ninety day notice, the "Termination Date" was July 12, 2023. The Court, on August 29, 2023, dismissed that action without prejudice because the Petition was signed and verified by counsel for the Petitioner on July 5, 2023, prior to the expiration date of the ninety day notice (see Andrew Scherer and Hon. Jean T. Schneider, Residential Landlord-Tenant Law in New York § 8:243 [West Practice Guide, 2022-2023 ed]).
The court's docket number for that action was LT-503-23. As stated in footnote 1, above, the Court takes judicial notice of that previous action as well as the papers contained in the court's file and the proceedings with respect to that action.
It appears Awilda Aviles did not challenge the actual service of the ninety day notice on her in the previous action and does not address the service of the ninety day notice on her in this action, but that issue will be discussed later in this Decision and Order. There was no affidavit of service of the ninety day notice and/or the Notice of Petition and Petition on Angie Aviles or "any other occupants" in the previous action.
The Petitioner then commenced this action against both the Respondents, based on the same ninety day notice used as the predicate notice in the first proceeding that the Court dismissed.
The Notice of Petition and Petition in this action was filed with the court on August 31, 2023, two days after the Court dismissed the prior action without prejudice.
The "general rule [is that] a predicate notice in a holdover proceeding dies when the holdover proceeding based on it is discontinued or dismissed... [and] the landlord is required to serve a new predicate notice prior to commencing a second holdover proceeding, even if the second proceeding is identical to the first (id. at § 8:225 [citations omitted]). This had been the rule in the Second Department pursuant to the holding in Nicolaides v State Div. of Housing and Community Renewal (231 A.D.2d 723 [2d Dept 1996]). The holding in Nicolaides, however, has been questioned and may no longer be the rule in the Second Department (see Georgetown Unsold Shares, LLC v Ledet, 130 A.D.3d 99, 105-106 [2d Dept 2015) [no evidence the landlord "intentionally relinquished its right to proceed on its nonrenewal notice merely by accepting rent checks after the expiration date of the lease" and, therefore, the nonrenewal notice was not nullified]; Culhane v Patterson, 54 Misc.3d 10, 12-13 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] ["Here, since the prior proceeding was discontinued without prejudice based on a defect in the notice of petition... (and s)ince a new proceeding was commenced within two days and tenants showed no prejudice, a finding of staleness (of the predicate notice) is not warranted (citation omitted)."]).
As the Nicolaides court stated, at 724, "[i]t is well settled that a notice of nonrenewal of a rent-stabilized lease does not survive the dismissal of the first holdover action and cannot serve as the predicate for a second proceeding in a new forum [citations omitted]. Accordingly, the Supreme Court properly dismissed the petition since the dismissal of the proceeding in the Civil Court terminated the entire matter, including the notice of nonrenewal which was the predicate for the proceeding before the Civil Court [citation omitted]."
Because the Petitioner used the same predicate ninety day notice in the second action as in the first action, the Court has to determine whether the predicate ninety day notice was rendered stale once the first action was dismissed without prejudice. Based on the fact that the Petitioner commenced this action within two days of dismissal of the first action and there is no showing of prejudice to the Respondents, the Court follows the guidance in Georgetown Unsold Shares, LLC and Culhane and determines that the Petitioner did not "intentionally relinquish[ his] right to proceed on [his] nonrenewal notice" (Georgetown Unsold Shares, LLC at 105; see Culhane at 12-13), and the original predicate ninety day notice dated April 13, 2023 was not rendered stale once the first action was dismissed (see Record v Marciano, 79 Misc.3d 1204 [A], 2023 NY Slip Op 50530[U], *1-2 [Suffolk Dist Ct 2023]).
Even though it is possible to use the same ninety day notice in this action, the ninety day notice in this action fails on a number of points.
It is well settled that "service of a proper notice of intention to terminate occupancy [is] a condition precedent to the termination of [a] tenancy" (Chinatown Apartments, Inc. v Chu Cho Lam, 51 N.Y.2d 786, 788 [1980]). A petitioner in a summary proceeding "is bound by the notices served... which are not subject to amendment... [If] the predicate notices are defective [they] cannot support [the] proceeding" (citations omitted) (Bray Realty, LLC v Pilaj, 59 Misc.3d 130 [A], 2018 NY Slip Op 50426[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] [the notice to cure and notice of termination referred to a lease dated November 19, 2012, but the lease at issue actually was dated September 15, 1997; petition dismissed]).
As discussed above, the ninety day notice in the prior action and this action was addressed to "AWILDA AVILES and any other occupants of 52 Grand Avenue, Unit 3, Middletown, New York 10940" and was dated April 13, 2023. In addition, the Awilda Aviles Affidavit states that she and her daughter (Angie Aviles) were month to month tenants since they moved in to the Property, and that the "Petitioner has always been aware of the identities of both my daughter and I, as both of our names have been placed [on] the signed rental receipts" (Awilda Aviles Affidavit, paragraph 3). Attached to the Awilda Aviles Affidavit are copies of rental receipts (from December 2022 to April 2023) signed by the Petitioner listing both Awilda Aviles and Angie Aviles as tenants. The Morse Reply Affirmation does not mention or address the rental receipts, and there is nothing from the Petitioner contesting Awilda Aviles' assertions on those points. Accordingly, the Petitioner appears to have been aware of the identity of Angie Aviles at least as early as December 2022, if not from the date of the Respondents' initial occupancy. In fact, paragraph 4 of the Petition in this action refers to both Respondents when it states "[t]he respondents, AWILDA AVILES and ANGIE A/K/A ANGELA AVILES, are the tenants of the leased Premises, who entered into possession under an oral rental agreement made at least three (3) years ago between Respondents, as Tenants, and Petitioner, as Landlord" (capitalization in original; emphasis supplied).
Notwithstanding the language in paragraph 4 of the Petition, the Morse Affirmation states, in paragraph 21, the "[i]n the instant case, ANGIE A/K/A ANGELA AVILES'S [ sic ] true and full legal name was unknown to the Petitioner at the time of the NINETY (90) Day Notice to Quit" (capitalization in original). Paragraph 22 of the Morse Affirmation also asserts that "[t]he Petitioner formed an oral lease agreement with AWILDA AVILES at the outset of her tenancy at least three (3) years ago. Because the agreement was not directly between the Petitioner and ANGIE A/K/A ANGELA AVILES, Petitioner did not know ANGIE A/K/A ANGELA AVILES's [ sic ] identity or full legal name at the time petitioner had service made of the NINETY (90) Day Notice to Quit. Due to the CPLR § 1024 provision allowing for fictitious names in the event an identity or name is unknown in whole or in part, Petitioner identified ANGIE A/K/A ANGELA AVILES through the fictitious designation 'any other occupants of 52 Grand Avenue, Unit 3...'" (capitalization in original).
The Morse Affirmation does not show how the attorney for the Petitioner knew or was aware of the information stated in paragraphs 21 and 22 of the Morse Affirmation, and nothing is offered from the Petitioner himself asserting those statements. Perhaps of more significance is the fact that paragraph 4 of the Petition (which was verified by counsel for the Petitioner) directly contradicts the express language in paragraph 22 of the Morse Affirmation.
CPLR § 1024 does allow the use of fictitious names where there is an unknown party ("A party who is ignorant, in whole or in part, of the name or identify 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 there is an unknown party designated as such or designated, for example, as "John Doe" or "Jane Doe," however, the Petitioner must exercise due diligence in ascertaining the real name(s) of the unknown party(ies). There is no indication the Petitioner exercised due diligence to ascertain the real name of any other occupants of the Property if, in fact, the name of Angie Aviles truly was unknown to the Petitioner. According to paragraph 4 of the Petition in this action, however, the Petitioner not only knew the names of the Respondents but claims (at least through counsel) that the named Respondents are the tenants and they moved into the Property at least three years ago. As noted by the court in Redstone Garage Corp. v New Breed Automotive, Inc., 54 Misc.3d 126 (A), 2016 NY Slip Op 51776(U) *1 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016) in vacating a judgment and warrant issued against an occupant listed as "XYZ Corp.," a fictitious name, "[i]f the plaintiff knows, or reasonably should know, the defendant's true name, an unknown party designation in the summons will generally be treated as a jurisdictional defect [citation omitted], and the failure to exercise due diligence to ascertain the defendant's true name subjects the complaint to dismissal as to that party [citation omitted]. In addition, the unknown party must be described in such form as will fairly apprise the party that it is the intended defendant [citations omitted]." Accord RR Reo II, LLC v Omeje, 33 Misc.3d 128 (A), 2011 NY Slip Op 51848(U) *2 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011) ("'In order to employ the procedural mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party...' [citation omitted].... 'An insufficient description subjects the [John] Doe' [ sic ] complaint to dismissal for being jurisdictionally defective' [citation omitted]"; the petitioner/landlord failed to exercise due diligence in ascertaining the proper name of occupants before using the procedure authorized by CPLR § 1024; judgment and warrant of eviction against "John Doe" vacated).
Because the Petitioner knew, or should have known, the true name of Angie Aviles, and because there is no indication the Petitioner used due diligence to ascertain the true name of Angie Aviles, the ninety day notice of termination addressed to "AWILDA AVILES and any other occupants" is deficient and defective as to Angie Aviles. Because that ninety day notice of termination is alleged to be the predicate notice to Angie Aviles, and because the predicate notice is defective and cannot be amended, the Petition is dismissed as to Angie Aviles (see Chinatown Apartments at 788; Bray Realty, 2018 NY Slip Op 50426[U], *1-2; see also Andrew Scherer and Hon. Jean T. Schneider, Residential Landlord-Tenant Law in New York § 7:113 [West Practice Guide, 2022-2023 ed]).
The Petition also must be dismissed against Awilda Aviles for improper service of both the predicate ninety day notice of termination and the Notice of Petition and Petition. The Affidavit of Service of the ninety day notice of termination claims the ninety day notice was served on both Respondents "by affixing in on [ sic ] the entrance door... [and f]urther, I mailed a copy thereof enclosed in a post-paid properly addressed wrapper to the Tenant at the above address, which is the Tenant's residence, by first class mail and by certified mail" (emphasis supplied). The Affidavit of Service does not indicate which tenant was served and does not indicate whether the service was on Awilda Aviles or Angie Aviles. There is no Affidavit of Service describing separate service on Awilda Aviles and Angie Aviles. As a result, service of the ninety day notice of termination fails to meet the requirements of RPL § 226-c and is defective with respect to both Respondents, rendering the alleged service of the ninety day notice of termination null and void (see Andrew Scherer and Hon. Jean T. Schneider, Residential Landlord-Tenant Law in New York §§ 8:225, 8:243 [West Practice Guide, 2022-2023 ed]). Because the alleged service of the predicate notice on Awilda Aviles is null and void, the Petition must be dismissed against Awilda Aviles.
Although the Respondents did not raise the issue of service of the ninety day notice and/or the Notice of Petition and Petition on Awilda Aviles, the Court will not ignore the problems with the service of those documents on Awilda Aviles.
The Affirmation of Service of the Notice of Petition and Petition in this action on both the Respondents also is defective. The Affirmation of Service claims the Notice of Petition and Petition was served on both Respondents "[o]n the 1st day of September 2023, at 10:15 A.M./P.M." (capitalization in original; emphasis supplied). It also states personal service was attempted on August 31, 2023 on two separate occasions and on September 1st, 2023 at 10:11 a.m., and "[a]fter attempting personal service" the Notice of Petition and Petition was placed "under the entrance door... [and ] I mailed a copy thereof enclosed in a post-paid properly addressed wrapper to the Tenant at the above address, which is the Tenant's residence, by first class mail and by certified mail" (emphasis supplied). Not only is there confusion as to whether the Notice of Petition and Petition were placed "under the entrance door" in the morning or the evening of September 1st, but, again, there is no separate Affirmation of Service describing separate service on Awilda Aviles and Angie Aviles. As a result, service of the Notice of Petition and Petition fails to meet the requirements of RPAPL § 735 and it, too, is defective, rendering it null and void.
As a result of the defective service of both the ninety day notice of termination and the Notice of Petition and Petition on both Respondents, this action must be dismissed.
DECISION
Now, upon reading and considering the Notice of Petition and Petition, the Respondents' motion with supporting papers seeking dismissal of the Petition, the Petitioner's papers in opposition to the Respondents' motion and in support of the Petitioner's cross motion for summary judgment, all documents in reply or response, all exhibits, and all prior proceedings, it is
ORDERED, that the Petitioner's cross motion for summary judgment against both Respondents is denied, and it is further
ORDERED, that the Respondents' motion to dismiss the Petition against both Respondents is granted as set forth in this Decision and Order, without prejudice.
The foregoing constitutes the Decision and Order of this Court.