This is a licensee holdover proceeding brought against only respondent Eddie Griffith. The tenant of record was Mr. Griffith's mother, Beatrice Stewart, who died on October 11, 2009. The matter first appeared on the calendar on June 23, 2010 at which time Mr. Griffith did not appear and the matter was scheduled for inquest on July 8, 2010. Mr. Griffith appeared on July 8 and claimed succession rights from his mother. As a result, the matter was scheduled for trial on August 24, 2010. As Mr. Griffith did not appear on August 24 an inquest was held and a default judgment of possession was entered against him. Mr. Griffith then filed an order to show cause seeking additional time to vacate. A stipulation of settlement was signed by him on November 22, 2010 affording him until December 15, 2010 to vacate. Since November 22, 2010 Mr. Griffith has never again appeared in this matter.

On December 6, 2010, six months into this proceeding and at virtually the last possible moment, Alicia Gorham appeared for the very first time presenting a pro se order to show cause at which time she stated that Ms. Stewart was her grandmother. She further stated that she had been living in the subject apartment since before Ms. Stewart died and that Mr. Griffith, her uncle, did not live and never lived in the apartment. Implicit was an apparent claim of succession rights.

On the December 14, 2010 return date of her pro se order to show cause, Ms. Gorham appeared by counsel. Counsel again stated numerous times that Ms. Gorham was Ms. Stewart's granddaughter and they were living together. No proof at all was presented at the time as to this assertion and while counsel indicated the proof would be submitted as to this relationship and the matter was adjourned to submit the proof, no such proof was ever submitted by Ms. Gorham or her two attorneys at the five subsequent court appearances. After argument on December 14, 2010, the order to show cause was denied by this Court as Ms. Gorham presented insufficient proof in support thereof. However the denial was without prejudice to the filing of a new order to show cause by counsel with appropriate support.

On January 5, 2011, Ms. Gorham, by newly substituted counsel, filed the instant order to show cause. After argument on the order to show cause on March 10, 2011, with both sides represented by counsel, it was agreed that decision was reserved on the sole issue of whether the [*2]petition should be dismissed on the grounds that Alicia Gorham, who was neither named nor served, was a necessary party to the proceeding.

The Court has carefully read all the submissions and exhibits and has listened to the recordings of all the times this matter has appeared on the calendar and has also read all the papers and listened to the recordings of two prior proceedings involving the subject premises. As a result, the Court concludes that movant Gorham's presentation on the issue presented is at best disingenuous, evasive and deceptive, and at worst, dishonest and fraudulent, and that virtually no factual support whatsoever is set forth to warrant the conclusion that the petition should be dismissed on the basis that she was a necessary party who was not named or served. Therefore, her motion is denied in its entirety.

To begin with, in the instant order to show cause submitted by Ms Gorham's newly substituted counsel and containing her affidavit, she has completely dropped all pretense that she is Ms. Stewart's granddaughter. In fact, the moving papers make no mention at all of any blood relationship between the two. Ms. Gorham only makes the bare conclusory statement that had she been named and served she would have asserted a succession rights defense as "she enjoyed with the tenant of record a close familial relationship, defined by sharing of expenses and pooling of income and resources." Yet she presents not a scintilla of evidence, or even any specifics at all, in support of this claim, nor any explanation as to the fact that she and prior counsel originally and consistently claimed that she was Ms. Stewart's granddaughter.

The only other statement Ms. Gorham makes concerning her purported relationship with Ms. Stewart is: "I provided significant home assistance to the tenant of record in the last years of her life, including feeding her, washing her, bathing her, providing companionship and life support." This assertion, in conjunction with the additional apparent weaknesses, deceptions and fraud contained in Ms. Gorham's presentation, as set forth below, yield a far clearer picture of Ms. Gorham as Ms. Stewart's home attendant, at most, rather than the picture of someone who has a colorable claim of an independent possessory interest in the subject premises rendering her a necessary party to this proceeding. This picture of a home attendant, rather than any traditional or nontraditional familiar relationship, is consistent with the sworn statement of petitioner's property manager who avers that during communications with Mr. Griffith he indicated that his mother lived alone, that he assisted her during her illness, and that she had a home health aide who also assisted his mother but did not reside in the subject apartment.

Of equal, or greater importance, is the lack of credible proof, or, for that matter, any proof, that Ms. Gorham (who presents no proof of any relationship with Ms. Stewart), even resided in the apartment prior to Ms. Stewart's death, no less presents a colorable claim of succession rights so as to make her a necessary party. As purported proof of her occupancy of the subject premises, Ms. Gorham annexes the following documents to her motion: correspondence from the New York State Department of Taxation and Finance, a New York State Certificate of Title for a used car, and correspondence from New York Medicaid Choice. While all three documents are addressed to her at the subject premises, they are dated February 5, 2010, September 2, 2010, and December 9, 2009 respectively, all after the death of Ms. Stewart, and with the September 2, 2010 document dated even after this proceeding was commenced.

Most significantly as to Ms. Gorham's credibility, she also presents a portion of a purported "Transaction Journal" from Citibank. After its careful examination of this purported documentation, the Court has determined that it has apparently been doctored. First, although it [*3]is indicated that the so-called journal consists of six pages, without any explanation, only page 4 of 6 is submitted. Second, there are two pages 4 of 6 submitted. They indicate only various banking transactions in February and March 2007 and the two 4 of 6 pages are identical in terms of the transactions listed. Third, the only difference in the two pages 4 of 6 is Ms. Gorham's address listed on the top of each document. One page 4 of 6 indicates her address as "523 51 ST APT 1A Brooklyn, NY 11220." This is not the address of the subject premises and thus certainly does not indicate Ms. Gorham resided at or even occupied the subject premises! Fourth, the second page 4 of 6 indicates Ms. Gorham's address as "715 ST MARKS AVE 1J BROOKLYN NY 11220." This address has clearly been doctored as the 11220 zip code is the zip code for 523 51 St. and is not the zip code for the subject premises at 715 St. Marks Ave, which is 11216 according to the United States Post Office (and as indicated on the petition)!

Ms. Gorham has not even shown that she was a household member occupying the premises, no less that she has even a colorable claim of succession rights. In a summary eviction proceeding, all persons with rights of possession in the premises are considered necessary parties who must be named in the petition as respondents and served. This includes tenants, co-tenants and other occupants with rights vis-a-vis the owner or independent rights of possession (such as a household member occupying the premises who has succession rights). See, Scherer, Residential Landlord-Tenant Law in New York §7:93 (2010). Ms. Gorham has failed to demonstrate that she fits any of these categories. Even if Ms. Gorham occupied the subject apartment with Ms. Stewart, the tenant of record, she was not named on the lease and her right to occupancy derived entirely from the tenant and therefore she need not have been named in the petition as a respondent and served because her right of possession was exclusively subject to that of the tenant. Mimikopoulos v. Nickalas, NYLJ, Sept 16, 1998, p 24, col 1 (Civ Ct, Queens Co); Betty & Lily Corp v Singer, NYLJ, Nov 1, 1991, p 21, col 2 (App Term, 1st Dept); 523 West 138 St Realty v Castillo, NYLJ, Aug 14, 1990, p 17, col 1 (App Term, 1st Dept); Flak v Kaye, NYLJ, Dec 9, 1991, p 28, col 2 (App Term, 1st Dept).

The only basis in the context of this proceeding which would require the naming of Ms. Gorham as a necessary party, the absence of which would require dismissal, would be if she had made a sufficient showing in her motion papers and exhibits that she was a traditional or nontraditional family member of Ms. Stewart who had independent possessory rights to the apartment by way of succession rights. See, Stanford Realty Assoc v Rollins, 161 Misc 2d 754 (Civ Ct, NY Co 1994); Katz Park Ave Corp v Olden, 158 Misc 2d 541 (Civ Ct, NY Co 1993).

Certainly, the oft repeated assertion by Ms. Gorham and her first counsel in her initial order to show cause that she was Ms. Stewart's granddaughter, without ever having presented the promised proof, followed by the pregnant lack of any assertion by her or her substituted counsel in this second order to show cause of any blood relationship whatsoever between her and Ms. Stewart, as well as the bald assertion herein that "she enjoyed with the tenant of record a close familial relationship, defined by sharing of expenses and pooling of income and resource," with absolutely nothing more presented, does not make it so and does not set forth a colorable claim of an independent right of possession by way of succession rights. Thus, it does not render her a necessary party whose failure to be named and served as a respondent in this proceeding warrants dismissal of the petition. It is abundantly clear that not everyone who may be occupying an apartment, especially without any independent right to possession, is a necessary party who can call for dismissal of the petition if they are not named as a respondent. [*4]

Another disingenuous aspect of Ms. Gorham's presentation is her assertion that she did not appear in this June 2010 matter until her December 2010 order to show cause because she had no knowledge of the proceeding since only Eddie Griffith was served. However, at the same time, she and her two counsels have consistently asserted that Mr. Griffith never resided in the apartment and that she alone lived in the premises with Ms. Stewart in an unspecified and undocumented "close familial relationship" before Ms. Stewart's death in October 2009 and has remained in the apartment after the death. However, both the predicate notice and the petition were served by conspicuous place service, placed on the door of the apartment and mailed by regular and certified mail to the subject apartment, and the inquest postcard was also mailed by the court to the subject apartment, where only Ms. Gorham lived and where Mr. Griffith never lived. Yet, Ms. Gorham claims she was never aware of this proceeding.

Moreover, there were two prior nonpayment proceedings brought against Ms. Stewart only (Index Numbers 068333/09 and 056253/10). The 068333/09 case was brought shortly before Ms. Stewart's death. Only Mr. Griffith appeared and on the first date he paid all the rent and the matter was settled. No mention was made of Ms. Gorham or anyone else residing in the apartment. The 056253/10 case was brought after Ms. Stewart's death and, again, only Mr. Griffith appeared, and no mention was made of Ms. Gorham or anyone else residing in the apartment. That matter was discontinued by petitioner as Ms. Stewart was deceased and Mr. Griffith did not remove his mother's belongings and vacate the apartment as he had agreed. Shortly after that discontinuance, the instant proceeding against Mr. Griffith was commenced. In each of these prior nonpayment proceedings the demand notice and petition were also served by conspicuous place service, and despite that Ms. Gorham was the only one allegedly living in the apartment and had a "close familial relationship" to Ms. Stewart, and Mr. Griffith had never lived in the apartment, Ms. Gorham never appeared and only Mr. Griffith did, and no mention was made of Ms. Gorham residing in the apartment or claiming succession rights. In fact, at none of the numerous times the three cases involving the subject premises appeared on the calendar was Ms. Gorham's name even mentioned, no less that she resided in the apartment or claimed succession rights and, for that matter, Mr. Griffith, who appeared in all three cases, never even mentioned he had a niece or that Ms. Stewart had a granddaughter.

In addition to Ms. Gorham never having appeared in any of the three proceedings involving this apartment and there never having been any mention made in any of the three proceedings of her residing in the apartment, Ms. Gorham gives no indication in her affidavit no less presents any supporting documentation as to how petitioner knew or should have known thatshe was even residing in the apartment, no less that she had any colorable claim of an

independent possessory interest and was thus entitled to be named and served in this proceeding. In fact, the record in the 056253/10 proceeding indicates that petitioner refused to settle that matter by recognizing Mr. Griffith as the successor tenant because he had not been residing at the apartment as his primary residence for the requisite period, if at all, and petitioner suspected (as, it turns out, with considerable legitimacy), that what was really occurring was a veiled attempt to secure the apartment not for Mr. Griffith, but for Ms. Stewart's home attendant.

Lastly, petitioner indicates that rent accruing only after Ms. Stewart's death in October 2009, amounted to $9.258.24 through January 2011, and with no rent clearly having been paid since January, the total outstanding through June 2011 is $12,151.44.

It might be kept in mind that the issue here is not one of joinder of either another actually named or John or Jane Doe respondent at the discretion of the landlord so as to assure that any [*5]warrant issued by the Court is effective against said other respondent. Rather the issue here is whether Ms. Gorham is an indispensable or necessary party who must be named in the petition and served and dismissal is warranted if she was not named and served. The Court has answered this issue in the negative. For a comparison of the two issues relevant to this proceeding, see, Scherer, Residential Landlord-Tenant Law in New York §§7:94-100 (2010).

Thus, for all of the above reasons the motion to dismiss is denied in its entirety. The warrant of eviction may execute after service of a marshal's notice.

This constitutes the decision and order of the Court.

Dated: Brooklyn, New York

June 17, 2011

_______________________

Marc Finkelstein

JHC