Opinion
251238/07.
Decided March 14, 2008.
Robert I. Miller, Esq. Rappaport, Hertz, Cherson Rosenthal, Petitioner.
Edward Harold King, Esq., Respondent.
This is a nonprimary residence holdover proceeding initially commenced against Raymond Jones, the tenant of record and John Doe/Jane Doe. Respondents move pursuant to CPLR 3211 to dismiss the case because 1) there exists a current nonpayment proceeding between the parties which requires dismissal of this holdover action, 2) petitioner misused CPLR 1024 because it was aware of the true identity of the occupant and 3) improper service. Petitioner cross moves for an order striking respondent's answer and traverse claim and adding Keith Raymond Jones as a party respondent. Based on the Notice of Motion (1), Notice of Cross Motion (2) and Affirmation in Opposition to Cross Motion (3), the Court denies respondent's motion and grants petitioner's cross motion to the extent below.
Generally, if a landlord initiates a holdover proceeding and then commences a nonpayment proceeding, the nonpayment case operates as a waiver of the right to proceed with the holdover because it reaffirms the tenancy ( Berkley Assoc. Co. v Gerstein, NYLJ 5/7/87, 13:3 [AT 1st Dept]). However, where a nonpayment proceeding is brought prior to the termination of the lease, a landlord may continue with the nonpayment as long as its actions do not suggest that the tenancy is still in effect ( 1050 Tenant's Corp. v Lapidus, 12 Misc 3d 1196[A], 824 NYS2d 769 [Sup Ct NY Co 2006]). A landlord may rely on a warrant issued in an earlier nonpayment and cancel its right to evict by accepting the rent due under the nonpayment final judgment as well as the accruing rent without waiving the right to maintain a holdover proceeding ( see Corrado v Harris, 13 Misc 3d 4, 822 NYS2d 365 [AT 2nd Dept 2006]). Under the facts of this case petitioner did not reaffirm the tenancy and waive its right to continue the holdover. The nonpayment was commenced before the service of the termination notice and only sought rent due while the lease was still in effect. The stipulation of April 26, 2007 required tenant to pay only rent due prior to the expiration of the lease and it was to be paid on the last day of the term. When tenant failed to pay he obtained an Order to Show Cause to avoid an eviction and sought an extension. The matter was adjourned a number of times in the hope of settlement of both cases. Petitioner maintained the position that it did not want to continue the tenancy or waive its rights under the pending holdover. Over the petitioner's opposition, the Court extended respondent's time to pay to avoid an eviction but did so without prejudice to the holdover proceeding as requested by the petitioner. The petitioner did not waive its right to proceed in the holdover case and did not reaffirm the tenancy. The part of the motion seeking dismissal because of the nonpayment case is denied.
Petitioner improperly used a John Doe/Jane Doe designation in this case. Petitioner was made aware of the identity of the occupant by letter, prior court proceedings and respondent's attorney's representation. A petitioner may not use a fictitious name for a party under CPLR 1024 if it knows the name of that party ( Triborough Bridge and Tunnel Authority v Wimpfeimer, 165 Misc 2d 584, 633 NYS2d 695 [AT 1st Dept 1995]). Petitioner, in essence, concedes this and cross moves to join the occupant Keith Raymond Jones. A court should allow joinder of a necessary party without dismissal when possible ( see Washington Mutual Bank, FA v Hanspal , 14 Misc 3d 1217 (A), 836 NYS2d 491 [Dist Ct Nassau Co 2007]). Dismissal is not mandated in this case because Keith Raymond Jones' rights are subordinate to that of the tenant of record and due process requires only that he be made a party so that the warrant, if obtained, would be effective against him ( see 170 West 85th Street tenant's Assoc. v Cruz, 173 AD2d 338, 569 NYS2d 705 [1st Dept 1991]). The cross motion is granted to the extent of joining Keith Raymond Jones as a respondent. The caption and papers are amended accordingly. A copy of the Petition and Notice of Petition were annexed to the cross motion and served on respondent Keith Raymond Jones. This is deemed sufficient. The part of the motion seeking dismissal for use of a fictitious name is denied.
Respondent seeks dismissal because undertenant Keith Raymond Jones was not served and because the petition and notice of petition were not properly served at the premises that was allegedly the primary residence of the tenant. The first part of the service defense is mooted out by this Court's granting of the cross motion to join Keith Raymond Jones. Although petitioner could not name and serve him by using a fictitious name because his identity was known, it has now joined him as a party. The second part of the service defense is conclusory and insufficient to require a hearing ( see Clarkson Arms, Inc. v Arabitz, NYLJ 7/3/91, 23:6 [AT 1st Dept]). The process server's affidavit claims that the requisite mailings were made to the alternate address as required by CPLR 735 1 [a]. Respondent provides no facts alleging how or why that service was improper. He merely claims that service was not made at the alternate address. Without alleging detailed and specific allegations the defense is not properly raised and there is no need for a hearing. The motion to dismiss for lack of service is denied and the cross motion for striking the personal jurisdiction defense is granted.
Accordingly, the motion to dismiss is denied. The cross motion is granted to the extent indicated above and denied in all other respects. The case shall appear on this Court's calendar on April 17, 2008 at 9:30 a.m. for resolution. This constitutes the order of the Court.