Parties

The Respondent, Elizabeth Amenya, was represented by Mihaela Petrescu, Esq. from Legal Services of the Hudson Valley. The Petitioner, Crossroads Associates, LLC, was represented by Carl L. Finger, Esq., Finger & Finger, P.C.

The Respondent now moves to dismiss the petition in this holdover proceeding on the grounds that (1) pursuant to CPLR 3211(a)(8) the court lacks jurisdiction over all of the tenants; (2) that pursuant to Civil Practice Law and Rules (CPLR) 3211(a)(2) the petition is jurisdictionally defective; (3) that pursuant to CPLR 3211(a)(7) the petition fails to state a cause of action for a holdover; and (4) that pursuant to Real Property Actions and Proceedings Law (RPAPL) §741(4) the petitions fails to state the facts upon which the proceeding is based; (5) that pursuant to NY Real Property Law (RPL) §234 grant reasonable attorney's fees plus costs and disbursements; and (6) that pursuant to CPLR 404(a), if the motion is denied, permit the [*2]Respondent to file and serve an answer within five days after service of the order with notice of entry, together with such other and further relief as this Court deems just and proper.

For the reasons that follow, the motion is denied its entirety.

The Petitioner commenced this holdover proceeding against the Respondent on February 3, 2015 including $1195.00 in rent arrears. A hearing was held on February 10, 2015 after which the Court issued a judgment of possession and a warrant of eviction with a 10-day stay to February 20, 2015. However, the Respondent sent a letter to the Court on February 10, 2015, at some point after the hearing was held, informing the Court that he had missed the hearing due to a major surgical procedure. In response to the letter, the Court restored this matter to the calendar on February 19, 2015 and set a hearing date for February 27, 2015. On February 25, 2015, the Petitioner requested an adjournment of the February 27th hearing to March 10, 2015. On March 10, 2015, Petitioner was directed to provide the Respondent a copy of the lease for the subject premises no later than March 13, 2015. The Court directed the Respondent to either move or answer the petition no later than March 20, 2015; opposition papers to be served no later than March 31, 2015; and reply papers, if any, to be served no later than April 7, 2015. The Court set April 21, 2015 for a decision date and set a trial date, if any, in this matter for April 28, 2015.

On or about November 1, 2013, the Petitioner and the Respondent entered into a one-year residential (commencing November 1, 2013 and ending on October 31, 2014) lease for the premises located at 1107 Brown Street, Apt. 7B, Peekskill, New York (Motion to Dismiss, Exh. "A"; Aff. In Opp., Exh. "A").^[FN1] The monthly rent was $1195.00 (Id.). On or about August 29, 2014, the Petitioner sent a letter of non-renewal to the Respondent (Aff. In Opp., Exh. "B"). On or about September 29, 2014, the Petitioner extended the Respondent's lease term to November 30, 2014 (Id., Exh. "C"). On or about December 29, 2014, the Petitioner personally served the Respondent with a termination notice that specifically named the Respondent only (Id., Exh. "D").

On February 3, 2015, the Petitioner commenced a holdover proceeding against the Respondent and listed the occupants as "John and Jane Doe" even though the Respondent's children were specifically named as occupants in the lease. (Notice of Motion, Exh., "A"; Id. Exh. "B", ¶ "I"). On March 20, 2015, the Respondent moved to dismiss the petition upon the ground, inter alia,^[FN2] that the Petitioner's failure to specifically include the occupants as named parties in the holdover proceedings and in the notice to terminate, instead of "Jane and John Doe" and "all others occupying the Unit/Apt. 7B", renders the petition jurisdictionally defective [*3](Id., ¶¶7-10).

The Petitioner's counter argument is simply that only the Petitioner is a "tenant" of the subject premises and not her children (Solomon and Stephen), and that therefore there is no legal requirement that they be specifically included as named parties in this proceeding (Aff. In Opp., ¶¶8-12).

The Respondent replies and argues that the lease terms control and that the lease states that "all the occupants are tenants" and that Petitioner's failure to serve a termination notice and petition and notice of petition on Solomon and Stephen renders the holdover petition dismissible (Reply, ¶¶6-11).

I.Motion to Dismiss pursuant to CPLR 3211(a)(8) (Court has no jurisdiction over parties)

A.Petition Failed to Name Solomon and Steven as Parties

The Respondent moves to dismiss the holdover petition pursuant to CPLR 3211(a)(8) on the ground that the Court lacks impersonam jurisdiction over her. CPLR 3211(a)(8) states that a party may move to dismiss one or more causes of actions asserted against that party upon the ground that "the court has not jurisdiction of the person of the defendant." Upon a motion to dismiss for lack of personal jurisdiction, the central issue to be decided is whether the Court has jurisdiction and if not the Court must dismiss the action without condition. Foley v. Roche, 68 AD2d 558, 418 N.Y.S.2d 588 (1st Dept. 1979). Further, where the movant submits unrefuted allegations that the Court lacks personal jurisdiction over the movant, the motion should be granted. Sanchez v. Major, 289 AD2d 320, 734 N.Y.S.2d 211 (2d Dept. 2001).

While the ultimate burden of proof rests upon the party asserting jurisdiction, a plaintiff/petitioner, in opposition to a motion to dismiss for lack of personal jurisdiction, need only make a prima facie showing that the defendant/respondent was subject to the personal jurisdiction of the trial court. Daniel B. Katz & Associates Corp. v. Midland Rushmoree, LLC., 90 AD3d 977, 937 N.Y.S.2d 236 (2d Dept. 2011); Crystal Cove Seafood Corp. v. Chelsea Harbor, LLC., 47 AD3d 670, 850 N.Y.S.2d 171 (2d Dept. 2008).

In the case at bar, the issue more specifically to be decided is whether Solomon and Stephen are "proper" and/or "necessary" parties to the holdover proceeding. It is well settled that the rules relating to joinder of necessary parties apply in summary proceedings. Ryerson Towers, Inc. v. Brown, 156 Misc 2d 614, 594 N.Y.S.2d 108 (NY City Civ. Ct. 1993), order affirm. as modified on other grounds, 160 Misc 2d 107, 612 N.Y.S.2d 99 (App. Term 1994). But who is a necessary party in a summary proceeding? A "necessary" party in a summary proceeding is generally defined as a party without whom the court cannot proceed to issue an order or judgment if there is an objection to that party's absence. 89 NY Jur.2d, Real Property—Possessory Actions §136. It has been held that all occupants who derive their possessory interests from the principal respondent should be made parties to the summary proceeding; otherwise, their eviction under a warrant would be deemed wrongful. Fults v. Munro, 202 NY 34, 95 N.E. 23 (1911); DiScala v. Facilities Development Corp. for Office of Mental Retardation & Developmental Disabilities Staten Island Development Center, 180 Misc 2d 355, 691 N.Y.S.2d 229 (NY City Civ. Ct. 1998).

A "proper" party, on the other hand, is a party whose absence will not prevent the entry of a binding judgment, but whose presence would make an order or judgment more complete. [*4]Teachers College v. Wolterding, 77 Misc 2d 81, 351 N.Y.S.2d 587 (App. Term 1974); Gano v. Potter, 105 Misc. 482, 173 N.Y.S. 528 (Sup. Ct. 1918). Subtenants, tenants who have an independent possessory interest derived from the primary tenant, are usually considered "proper" but not "necessary" parties. NY Prac., Landlord and Tenant Practice in New York §15:228; Triborough Bridge and Tunnel Authority v. Wimpfheimer, 165 Misc 2d 584, 633 N.Y.S.2d 695 (App. Term 1995); Wilson v. 30 Broad Street Associates, L.P., 178 Misc 2d 257, 679 N.Y.S.2d 521 (NY City Civ. Ct. 1998).

While subtenants are not necessary parties to a summary holdover proceeding—meaning, they need not be served a termination notice and a petition and notice of petition in order for the Court to issue a judgment and warrant of eviction against the primary tenant, the failure to properly include subtenants in the holdover proceedings will bar the petitioner from evicting the subtenants pursuant to any warrant the petitioner obtains against the primary tenant. Farchester Gardens, Inc. by Pritch v. Elwell, 138 Misc 2d 562, 525 N.Y.S.2d 111 (Yonkers City Ct. 1987); 89 NY Jur.2d Real Property—Possessory Actions §137. Further, the non-joinder of a subtenant to a summary eviction proceeding against the tenant is not a viable defense that can be raised by the tenant. Teachers College v. Wolterding, supra; Atterbury v Edwa, 61 Misc. 234, 113 N.Y.S. 614 (App. Term 1908).

The Respondent argues that the lease defines Solomon and Stephen as tenants inasmuch as it states:

The Respondent further argues that although the definition of "tenant" as set forth in the lease is overly broad any confusion occasioned by such an overly broad definition should be construed against the draftsman or landlord. Id., ¶6, citing Wager v. Haberman, 378 N.Y.S.2d 837 (Sup Ct. New York County, 1978) (Court stated that the landlord is presumed to know the terms and contents of his own lease and any ambiguities therein are to be construed against him).

The Petitioner argues that the definition of tenant as set forth in paragraph 54 of the lease "references the lease and provisions therein, not the determination of who is and who is not a tenant for purposes of service and notice" (Aff. In Opp., ¶9). Further, the Petitioner argues that neither Solomon nor Stephen ever paid any rent and neither became a month-to-month tenant. Id., ¶10. In addition, the Petitioner argues that neither Solomon nor Stephen ever appeared in this action and that Respondent's attorney does not represent them in this action. Id. ¶11.

It has been held that the adult children of a tenant need not be named in the petition unless they have an "independent possessory right" to the subject premises. Loira v. Anagnastopolous, 204 AD2d 608, 612 N.Y.S.2d 189 (2d Dept. 1994); New York City Housing Authority v. Kilafofski, N.Y.L.J., June 6, 1996, at 36 (App. Term, 2d & 11th Jud. Dists. 1996); Daley v. Billinghurst, 799 N.Y.S.2d 159 (App. Term, 2d & 11th Jud. Dists. 2004); Washington v. Palanzo, 192 Misc 2d 577, 746 N.Y.S.2d 875 (App. Term, 2d Dept. 2002). A tenant's family member, although not a tenant of record, can have an independent possessory right in the lease premises derived from statutory rent regulations. Standford Realty Assoc. v. Rollins, 161 Misc 2d 754, 615 N.Y.S.2d 229 (NY City Civ. Ct. 1994) (Court noted that New York City rent and eviction regulations gives a wife or other defined family member of tenant of record independent possessory rights in [*5]the leased premises where wife used the premises as a primary residence for certain period of time).

A tenant's statutory right to sublet is governed by Real Property Law (RPL) §226-b which was re-enacted in 1983.^[FN3] That section entitles a tenant to sublet the rental premises pursuant to an "existing lease" in a dwelling having 4 or more residential units provided the landlord's prior written consent to sublet is obtained and provided the tenant complies with certain statutory criteria. Id. §§ 226-b(2)(a) and 226-b(2)(b). If the tenant complies with the aforesaid statutory criteria, the landlord may not unreasonably withhold consent. Id. §226-b(2)(a).

In the case at bar, the Court finds that Solomon and Stephen are not necessary parties to the holdover proceeding, and that, therefore, the failure of the Petitioner to serve them with a notice to terminate and notice of petition and petition does not render this holdover proceeding dismissible. The Court is not persuaded that paragraph 54 of the lease made Solomon and Stephen tenants in the leased premises. Further, even though Solomon and Stephen are named in the lease as occupants (Motion to Dismiss, Exh. "B", Lease, ¶ "I"), there is no evidence before the Court showing that they acquired an independent possessory interest in the leased premises, which would make them subtenants, let alone co-tenants.

Were the Court to consider Solomon and Steven as subtenants, the Petitioner was not required to serve a notice of termination and a notice of petition and petition on them in order to maintain a summary holdover proceeding against the Respondent. Teachers College v. Wolterding, supra. Further, as previously stated, the failure of the Petitioner to properly include Solomon and Steven as parties to the within summary holdover proceedings is a defense that can only be raised by Solomon and Steve, neither of whom appeared in this action, and not the Respondent. Atterbury v Edwa, supra.

Based on the aforesaid, the Court holds that it has impersonam jurisdiction over the Respondent. Therefore, the motion to dismiss the holdover petition pursuant to CPLR 3211(a)(8) is denied.

B.Solomon and Steven were named as "John and Jane Doe" even though there identities were known to the Petitioner

CPLR §1024 states,

If, prior to the institution of a summary proceeding, the landlord does not know the identities or names of proper parties, the landlord may use "John Doe" or "Jane Doe" designations, but only after exercising due diligence is trying to ascertain the names or identities of proper parties. Henderson-Jones v. City of New York, 87 AD3d 498, 928 N.Y.S.2d 536 (1st [*6]Dept. 2011). If the names and/or identities of the proper parties were known to the landlord before commencing the holdover proceeding, the use of "John Doe" or "Jane Doe" to designate the parties is improper and usually warrants a dismissal. Cymo Trading Corp. v. Manhattan Inn Hostel, LLC., 943 N.Y.S.2d 791 (App. Term., 1st Dept. 2012). Triborough Bridge & Tunnel Auth. v. Wimpfheimer, supra, citing ABKCO Indus. v. Lennon, 52 AD2d 435, 441 (1st Dept. 1976); Capital Resources Corp. v. Doe, 154 Misc 2d 864 (NY City Civ. Kings County June 3, 1992).

Respondent's motion to dismiss the petition on the ground that the Petitioner improperly designated Solomon and Steven as "John and Jane Doe" is denied because the failure to properly designate them rendered the petition defective as to them, but not as to the Respondent. Triborough Bridge & Tunnel Auth. v. Wimpfheimer, supra. Further, since Solomon and Steven were not served in this matter and did not appear in this matter, the failure to properly designate them would only be a viable defense if they were made a party to this case.

II.Motion to Dismiss Pursuant to CPLR §3211(a)(2) because the Petition is Jurisdictionally Defective

A.Failure to Serve and Name Solomon and Steven as Parties

CPLR §3211(a)(2) authorizes the Court to dismiss a cause of action where "the court has not jurisdiction of the subject matter of the cause of action." CPLR §3211(a)(2). For the reasons stated in Point I, supra, the Respondent's motion to dismiss the summary holdover proceeding pursuant to CPLR §3211(a)(2) is denied. If the Respondent is arguing that the Court lacks subject matter jurisdiction because Solomon and Steven were co-tenants who were not served in this matter (Motion to Dismiss, ¶¶4-7), this argument is rejected as the Court has already found that Solomon and Steven were not subtenants, let alone co-tenants, necessitating their inclusion in this proceeding.

B.Failure to Allege Section 8 Status of Rental Premises

The failure to allege the regulatory or statutory status of rental premises in the petition is a defense to the proceeding but not a jurisdictional defect warranting dismissal. Rippy v. Kyer, 23 Misc 3d 130(A), 2009 WL 996303 (App. Term 9th & 10th Jud. Dists. April 7, 2009); Wyandanch Comm. Dev. [*7]Corp. v. Nesbitt, 2003 WL 21402061 (App. Term 9th & 10th Jud. Dists. May 20, 2003); but see, Park Properties Associates, L.P. v. Williams, 38 Misc 3d 35, 959 N.Y.S.2d 798 (App. Term 9th & 10th Jud. Dists. November 26, 2012) (Court held that failure of the petition to set forth the tenant's regulatory status warrants dismissal unless the tenant was not prejudiced). In any event, a review of the petition in this matter clearly shows that the petition sets forth the tenant's Section 8 regulatory status in paragraph 9 (Motion, Exh. "A", ¶9). The motion to dismiss the petition on this ground is denied.

III.Motion to Dismiss Pursuant to CPLR §3211(a)(7) because the Petition Fails to State a Cause of Action

The Respondent moves pursuant to CPLR §3211(a)(7) to dismiss the petition because it fails to state a cause of action. A motion to dismiss pursuant to CPLR 3211(a)(7), for failure to state a cause of action, must be denied if the factual allegations contained within "the pleadings' four corners manifest any cause of action cognizable at law." 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 151-52 (2002). Since the Court has found that Solomon and Steven were neither co-tenants nor subtenants, their non-inclusion in this proceeding did not render the petition defective and therefore the petition properly stated a cause of action in holdover.

IV.Motion to Dismiss Pursuant to RPAPL §741(4) because the Petition Fails to State the Facts upon Which the Proceeding is Based

The Respondent moves to dismiss the petition pursuant to RPAPL §741(4) because it fails to state the facts upon which the proceeding is based. RPAPL §741(4) states every petition shall "[s]tate the facts upon which the special proceeding is based." Where a petition fails to allege the facts upon the proceeding is based, it is subject to dismissal. Park Properties Associates, L.P. v. Williams, supra. Since the petition in this case does set forth the facts upon which the proceeding is based (Motion, Exh. "A", ¶9), RPAPL §741(4) is not implicated. The motion to dismiss the petition pursuant to RPAPL §741 (4) is denied.

Enter,

__________________________________

Honorable Reginald J. Johnson

City Court Judge

April 28, 2015

___________________________

Concetta Cardinale

Chief Clerk