Petitioner commenced this nonpayment summary eviction proceeding against Respondent Brigid Berger, the tenant of record. Respondent failed to answer or otherwise appear, and Petitioner was awarded a default judgment against her, along with issuance of a warrant of eviction. Occupant Alison Bacich then moved on multiple occasions to vacate the default judgment and for a stay of eviction. The court granted the first motion to the extent of staying the eviction for a time certain. The court denied the subsequent motions. The Commissioner of the Department of Social Services of the City of New York has moved for the appointment of a guardian ad litem for Bacich and to vacate the default judgment entered against Respondent.

Bacich has previously represented to this court that Respondent has not resided in the apartment for several months. In October 2015 Bacich informed the court that Respondent had vacated more than five months prior. But the affidavit of investigation from Petitioner's agent regarding Respondent's military status alleges that the agent met with Respondent in person on July 20, 2015, and that she personally stated that she was not in the military. The affidavit describes the Respondent as having blonde hair and brown eyes.

Based on Bacich's claim regarding when Respondent vacated, the person with whom the agent spoke could not have been Respondent. Additionally, the limited description given could also describe Bacich. This is not say that there is any certainty that the person with whom the agent spoke was Bacich and not Respondent, as Bacich may not be correct about Respondent's occupancy of the apartment and the description given could match Respondent's appearance, too. However, at one of the appearances in the proceeding Petitioner's agent indicated that Petitioner had believed that Bacich was the Respondent.

DSS has moved for the appointment of a guardian ad litem for Bacich. The annexed psychiatric evaluation report recommends such an appointment based on several psychiatric [*2]diagnoses pertaining to Bacich's mental health. Petitioner orally opposed the appointment of a guardian ad litem, though solely based on the procedural posture of the proceeding and not because of any dispute as to the correctness of the evaluating doctor's diagnoses or recommendation. Petitioner argues that at this point in the proceeding appointing a guardian ad litem would serve no purpose, as Bacich is not the tenant of record and therefore there are not rights or defenses that a guardian ad litem could assert.

Petitioner may be correct that there is no role for a guardian ad litem in this proceeding at this particular juncture. Petitioner only named Brigid Berger as a respondent in this proceeding. Petitioner did not name or serve Bacich or a "Jane Doe." In order for a warrant of eviction to be effective against a subtenant, licensee, or occupant, due process requires that the individual be made a party to the proceeding, whether by naming her in the petition and serving her therewith or by joining her as a party during the pendency of the proceeding (see 170 W. 85th St. Tenants Assoc. v. Cruz, 173 AD2d 338 [1st Dept 1991]; see also 2 Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 38:30 at 595-596 [4th ed 1998] [if landlord "seeks to remove a tenant who has sublet the premises, and desires complete possession, he must join the subtenants. If the subtenants are not made parties to the proceedings, they may not be evicted under a warrant issued in such proceedings"]; but cf. Loira v. Anagnastopolous, 204 AD2d 608 [2d Dept 1994] [holding that tenant's daughter could be evicted even though she was not named]).

Petitioner has not made any claim as to the nature of Bacich's occupancy that would merit in favor of a finding that Bacich does not qualify for the due process protections required by 170 W. 85th St. Tenants Assoc. Nor has Petitioner disputed the claim that Respondent in fact vacated the apartment many months ago. To the contrary, Petitioner seems to have been unaware that Bacich is not the Respondent. Absent any evidence or allegations to the contrary, and notwithstanding the court's prior orders, Bacich appears to be an occupant who may not be evicted from the apartment without having been named in the petition and served therewith, or subsequently joined as a party.

Accordingly, while there remains no basis to vacate the default judgment entered against Respondent, this court holds that the existing warrant of eviction is not effective as against Bacich. The court's prior orders in this proceeding are hereby vacated. Petitioner and any New York City marshal are hereby stayed from taking any action to execute the existing warrant of eviction against Alison Bacich.

DSS's motion is hereby granted insofar as the court will appoint a guardian ad litem for Bacich.

If it is so advised, Petitioner may move to join Bacich as a party to this proceeding. As it already has a judgment of possession as to Respondent, it may instead elect to commence a licensee holdover proceeding against Bacich.

This proceeding is marked off-calendar.