Civil Court of the City of New York, Bronx County, September 6, 2018

Gisela Galan, respondent pro se.

Anurag Parkash, Jamaica, for petitioner.

The decision and order on this motion are as follows:

The Appellate Division has stated that the constitutional right to due process requires that "for the warrant to be effective against a subtenant, licensee or occupant, he be made a party to the proceeding, either by naming him in and serving him with the petition and notice of petition or by joining him as a party during the pendency of the proceeding" (170 W. 85th St. Tenants Assn. v Cruz, 173 AD2d 338, 339-340 [1st Dept 1991]). The requirements of due process notwithstanding, the actual text of the warrant of eviction issued to the marshal "command[s]" the removal of not only the named respondent against whom judgment has been issued, but also "all other persons" from the designated property. Who, then, may the city marshal evict pursuant to a judgment and warrant issued in a summary eviction proceeding?

Petitioner in this nonpayment summary eviction proceeding named and served only one individual with the notice of petition{**61 Misc 3d at 504} and petition: respondent Gisela Galan, the tenant of record, who failed to answer or otherwise appear. A default judgment was entered against her and a warrant issued commanding her removal and removal of "all other persons" in the apartment. Her son later moved to vacate the default judgment, which motion was settled with an agreement whereby execution of the warrant was stayed on condition of payment of arrears by a date certain. In the agreement respondent's son alleged that no one else was living in the apartment.

This allegation proved false, as at least two occupants were living in the apartment at the time the marshal executed the warrant of eviction. The marshal removed everyone from the apartment. Two individuals, Alexander Pabon and Nicole Rivera, have moved to be restored to possession of the apartment. At a hearing held on the motion, Pabon testified that he moved into the apartment around May 2015, paying respondent's son $600 per month in rent. Respondent lived in the apartment at the time, but moved out a few months later in the fall of 2015. Respondent's son moved out in early 2018. Rivera testified that she moved into the apartment in late-March or early-April 2018 (after commencement of the proceeding) and that she also paid rent to respondent's son, in the amount of $650 per month. Both Pabon and Rivera testified that they had no knowledge of the proceeding until they were evicted. Petitioner called no witnesses.

Cruz's limitations as to a warrant's effectiveness was not new law in 1991. Eighty years earlier, in an action for damages based on illegal eviction, the Court of Appeals in Fults v Munro (202 NY 34, 43 [1911]) evaluated the language of the warrant of eviction that commanded the sheriff "to remove all persons from the said property and to put the said petitioner into full possession thereof." Reversing dismissal of the plaintiff's complaint, the Court held that this language "does not mean literally all persons, but only those in actual possession who are made parties to the proceeding and their guests, agents, servants and the like" (id.).

Fults is not an obscure case and its holding is not unknown. Rasch's Landlord and Tenant contains the following entries for "General rule" and "Persons removeable" each citing Fults for authority:

{**61 Misc 3d at 505}"All persons in possession of real property who derive their title through the tenant should be made parties to the proceeding, otherwise their dispossession under the warrant issued therein will be wrongful. They are proper parties." (2 Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 38:29 [5th ed 2018].)

"The statutes governing summary proceedings contemplate the joinder of the tenant, and all who derive title through him, in such proceedings instituted by a landlord. These parties cannot lawfully be removed without being given their day in court or an opportunity to object to the proceedings. Therefore, notwithstanding the provision of the Real Property Actions and Proceedings Law that the executing officer shall 'remove all persons,' it has been held that this section does not justify the removal of an occupant of property involved in a summary proceeding who should have been, but was not, made a party to the proceeding." (3 Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 46:10 [5th ed 2018].)

Nonetheless, contrary to Fults and Cruz, the warrant issued by the court, as printed from the Unified Case Management System of the Unified Court System, invariably and automatically "command[s]" the removal of the named respondent against whom judgment has been issued "and all other persons" from the designated property.^[FN1] The language of the warrant is required by RPAPL 749 (1), which provides that "[u]pon rendering a final judgment for petitioner, the court shall issue a warrant . . . commanding the [marshal] to remove all persons, and . . . to put the petitioner into full possession." It is the court's experience that, consistent with the language of the statute and the warrant, the marshal to whom the warrant is issued will remove all persons in the subject apartment without regard to whether those persons were named in and served with the petition or whether judgment was entered against them. Some city marshals have confirmed the accuracy of the{**61 Misc 3d at 506} court's observations: on two occasions over the past three years a small group of marshals has met with the judges of the Housing Court at court-sponsored "seminars," and at these seminars the marshals have confirmed this course of action, justifying their actions by the plain language of the warrant.

The court has confirmed that the language of the warrant always contains the "and all other persons" language, even when judgment has been rendered against only one of two or more respondents. For example, in a hypothetical nonpayment proceeding against John Doe and Jane Doe, it may happen that John Doe answers the petition, appears in the proceeding, and consents to entry of a judgment. Based on this judgment, the petitioner may apply for issuance of a warrant of eviction, prior to any disposition as to Jane Doe. Depending on how the clerk enters the judgment, the judgment will order "that a warrant of eviction shall issue removing John Doe from the described premises" or "that a warrant of eviction shall issue removing all named respondents from the described premises" (emphasis added).^[FN2] ,^[FN3]

But whether the judgment orders removal of "John Doe" or instead "all named respondents" has no effect on the presence of the "all other persons" text contained in the warrant itself, as illustrated below. Continuing with the foregoing example: though not required, often a petitioner will wait to apply for issuance of the warrant until after it has also obtained a default judgment against Jane Doe. But where petitioner chooses to not wait for this occurrence, the warrant may issue even though there is no disposition as to Jane Doe. When this happens, the warrant contains the following language directed toward the marshal: "you are commanded to remove the respondent(s) listed below: John Doe." But even though in this example no judgment has been obtained against Jane Doe, the proceeding has not been discontinued against her, and there is otherwise no disposition as to her status in the proceeding, the warrant next states, "[a]nd all other persons from the following described premises."

This is the case even when a respondent is specifically listed in the case management system as someone against whom the{**61 Misc 3d at 507} warrant is not effective. When the clerk is creating the judgment form she also has to choose from all respondents which will be the "parties on warrant." As a default, all respondents are set to be "parties on warrant," even where judgment is being entered only against one of those parties. The clerk must manually uncheck any names that will not be "on warrant." But even if the clerk does uncheck the name of any party against whom judgment has not been entered, although that person's name will not appear on the warrant as someone whom the marshal is directed to remove, the warrant will still include the catchall "and all other persons."

The above is no mere hypothetical. It is precisely what happened in Ultimate Redevelopment Inc. v Cruz (Civ Ct, Kings County, 2017, index No. 59757/17), an unrelated nonpayment proceeding previously before this court in which both [*2]respondents were tenants of record. One tenant answered, appeared, and consented to a judgment of possession and issuance of a warrant of eviction. The other tenant defaulted. The petitioner applied for and obtained issuance of a warrant based on the judgment it obtained on consent. It also applied for, but never obtained, a judgment against the defaulting party. Nonetheless, the marshal evicted both tenants from the apartment.

Given the opportunity to formally oppose the motion in writing, and provided advance notice by the court that in opposing the motion it should specifically address 170 W. 85th St. Tenants Assn. v Cruz, petitioner opted only to submit copies of a smattering of lower court decisions, none of which address Cruz or due process, and to argue orally that the applicable language in Cruz is mere dictum and, in any event, not applicable to a summary eviction proceeding based on nonpayment of rent. Inasmuch as the decision in Cruz hinged on the Court's holding that only the tenant of record and not an occupant is entitled to receive a predicate notice, the court agrees that the statement regarding due process and service of the petition is dictum. The appellant in Cruz, an occupant of the subject apartment named Freddy Mosquera, had not been served with the predicate 30 day notice of termination. But he was named in and served with the petition. The Court held that there was no statutory basis to require service of the predicate notice on a mere occupant. Instead:{**61 Misc 3d at 508}

"Due process requires only that, for the warrant to be effective against a subtenant, licensee or occupant, he be made a party to the proceeding, either by naming him in and serving him with the petition and notice of petition or by joining him as a party during the pendency of the proceeding. Mosquera was served with a copy of the petition and notice of petition, naming him as 'Freddy Doe (Undertenant)', which was legally sufficient to give him notice of the proceeding." (Cruz, 173 AD2d at 339-340 [citations omitted].)

In determining what weight to accord dictum, the Honorable Gerald Lebovits has suggested consideration of the following factors: (1) the court from which the dictum comes; (2) whether the decision containing the dictum was unanimous or from one generating concurring or dissenting opinions; and (3) how many times a court has stated the rule, as an indicator of whether it is a mere casual remark or more (London Terrace Towers, Inc. v Davis, 6 Misc 3d 600, 612-613 [Civ Ct, NY County 2004]). To these factors this court would add the significance and essentiality of the principle of law with which the dictum is concerned.

In this case the principle is the constitutional right to due process. "[T]he right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society" (Joint Anti-Fascist Refugee Comm. v McGrath, 341 US 123, 168 [1951, Frankfurter, J., concurring]). "The essence of due process is the requirement that 'a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it' " (Mathews v Eldridge, 424 US 319, 348 [1976], quoting Joint Anti-Fascist Refugee Comm., 341 US at 171-172; see also Armstrong v Manzo, 380 US 545, 552 [1965] ["A fundamental requirement of due process is the opportunity to be heard . . . which must be granted at a meaningful time and in a meaningful manner" (internal quotation marks omitted)]). Although the Court's statement in Cruz may be dictum, it is dictum concerning the application of one of the most fundamental rights guaranteed by the Constitution. It cannot be ignored or disregarded simply because it is dictum (cf. 95 Riv. Co. v Burnett, 160 Misc 2d 294 [Civ Ct, NY County 1993] [declining to follow dictum in Cruz that predicate notices to summary proceedings are not [*3]jurisdictional]).{**61 Misc 3d at 509}

The court also finds significance in the Appellate Division's explicit specification of the types of individuals entitled to due process. Rather than apply due process only to the actual appellant, the Court took care to prescribe the precise categories of inhabitants entitled to due process: subtenants, licensees, and occupants. "[A] licensee is one who enters upon or occupies land by permission, express or implied, of the owner, or under a personal, revocable, nonassignable privilege from the owner, without possessing any interest in the property" (Rosenstiel v Rosenstiel, 20 AD2d 71, 76 [1st Dept 1963]). The "Roommate Law" defines "occupant" as "a person, other than a tenant or a member of a tenant's immediate family, occupying a premises with the consent of the tenant or tenants" (Real Property Law § 235-f [1] [b]). The Rent Stabilization Code uses the same definition, by reference to the Roommate Law (Rent Stabilization Code [9 NYCRR] § 2520.6 [l]). Other than perhaps certain family members (see Loira v Anagnastopolous, 204 AD2d 608, 609 [2d Dept 1994] ["mere( ) . . . daughter of the tenant" can be evicted in holdover summary eviction proceeding even though she was not made a party to the proceeding]), all occupants of an apartment are entitled to due process. A pronouncement as broad as that contained in Cruz cannot be ignored as "mere dictum."

The court is not persuaded by petitioner's assertion that Cruz is applicable only to holdover proceedings and not nonpayment proceedings. There is no rationale to the claim that the constitutional right to due process attaches to the same individuals when the basis of the proceeding is holding over after termination of the tenancy, but not when the basis is nonpayment of rent. Moreover, the deprivation of due process may have practical consequences to someone other than the tenant of record. Occupants of an apartment other than the tenant of record may have standing to raise defenses to a nonpayment proceeding (see Rochdale Vil., Inc. v Goode, 16 Misc 3d 49, 52 [App Term, 2d Dept, 2d & 11th Jud Dists 2007] [daughter of tenant of record who had "established a colorable claim to . . . succession rights" had standing to defend against nonpayment proceeding "at least to the extent of demonstrating that the statutory prerequisites to the proceeding" were not satisfied]). In Rochdale Vil. it so happens that the petitioner did include "John Doe" and "Jane Doe" as respondents, thus {**61 Misc 3d at 510}providing the daughter of the tenant of record notice of the proceeding and an opportunity to demonstrate her claim to succession rights. But the mere choice of the petitioner to exclude "Jane Doe" could not have operated to lawfully deprive the tenant's daughter of the right to demonstrate a claim to succession and thus defend against the petition. "[T]he essential reason for the requirement of a prior hearing is to prevent unfair and mistaken deprivations of property" (Fuentes v Shevin, 407 US 67, 97 [1972]). Absent due process, an occupant with standing to defend a nonpayment proceeding who is not provided notice of the proceeding and an opportunity to be heard could suffer grievous harm in the form of eviction from his home.

Movants have made no showing that they have any right to succeed to the tenancy of respondent or otherwise have standing to defend against the petition. Yet this is of no consequence when it comes to due process.

"The right to be heard does not depend upon an advance showing that one will surely prevail at the hearing. 'To one who protests against the taking of his property without due process of law, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merit.' " (Id. at 87 [citation omitted].)

Yet, "[d]ue process is flexible and calls for such procedural protections as the particular situation demands" (Mathews v Eldridge, 424 US [*4]319, 334 [1976]). The exact process due to any particular occupant might vary depending on, for example, whether they have demonstrated standing to defend against the nonpayment proceeding, as in Rochdale Vil. But the import of Cruz is that every occupant is entitled to, at least, notice of the proceeding and some minimal opportunity to be heard, even if not a trial on the merits of the petition.

While it may not be typical for owners to name and serve individuals other than the tenant of record in nonpayment proceedings, it is surely not burdensome to do so. As is more common in holdover proceedings, where an owner is unsure of the identity of individuals residing in an apartment other than the tenant of record, or where an owner is aware of the existence of such individuals but not their identity, it may take advantage of the allowances in CPLR 1024 for suing unknown parties.{**61 Misc 3d at 511}

Additionally, it is worth noting that the requirements of Cruz are not that an owner must name every occupant residing in the apartment. In other words, subtenants, licensees, and occupants are not necessary parties to a summary eviction proceeding, the absence of which mandates dismissal of the petition (Triborough Bridge & Tunnel Auth. v Wimpfheimer, 165 Misc 2d 584 [App Term, 1st Dept 1995]). Rather, Cruz requires that an owner sue (or subsequently join) every occupant that it wishes to evict.

[1] Alexander Pabon was denied due process of law as required by Cruz. Nicole Rivera was not an occupant of the apartment at the time of the proceeding's commencement and thus could not have been named in the petition, even as "Jane Doe." The court awaits further guidance from the appellate courts as to the due process rights, if any, of occupants of an apartment taking possession after commencement of a summary eviction proceeding.

[2] But having found that Pabon was denied due process of law, the court must determine whether the facts warrant an order entitling Pabon to reenter the apartment. There is significant case law suggesting, if not requiring, that where it would be futile to restore a party to possession of the premises because a subsequent proceeding would result in that party's "certain eviction" (Soukouna v 365 Canal Corp., 48 AD3d 359, 359 [1st Dept 2008]), the court should decline to restore the party to possession.

The leading case in the First Department is Soukouna, which was an illegal lockout proceeding pursuant to RPAPL 713 (10) involving a commercial space (Soukouna v 365 Canal Corp., 11 Misc 3d 137[A], 2006 NY Slip Op 50522[U] [App Term, 1st Dept 2006]). The trial court had found that the landlord had illegally resorted to self-help in evicting the commercial tenant, awarded money damages, and restored the tenant to possession. The Appellate Term modified the order to deny restoration, holding that, because the trial court had found abundant evidence that the use of the premises was illegal (sale of counterfeit goods), "restoration of the tenant to possession pending the landlord's commencement of a summary eviction proceeding would be futile" (2006 NY Slip Op 50522[U], *1 [citation omitted]). The Appellate Division affirmed, on the same reasoning (Soukouna, 48 AD3d at 359 ["a summary {**61 Misc 3d at 512}proceeding brought by (the owner) would result in (the tenant's) certain eviction"]).

Arguably, while a commercial tenant should not be restored to possession where doing so would be futile, the rule should be different for a residential apartment. But the Appellate Term recently followed Soukouna in Bornstein v Goldberger (59 Misc 3d 135[A], 2018 NY Slip Op 50513[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), a summary holdover eviction proceeding concerning a residential unit in an unregulated residential building based on the expiration of the parties' lease. In Bornstein, judgment was entered against the tenant, with execution of the warrant of eviction stayed through August 31, 2016, on the condition that he made payments for use and occupancy. Having failed to pay, the tenant was evicted in July. He moved to be restored to possession based on two claims: that he had timely paid use and occupancy and that the building was a multiple dwelling and was not registered with the Department of Housing Preservation and Development, and thus no use and occupancy could be collected. The Appellate Term affirmed the trial court's denial of the motion, because even if the tenant was restored to possession, he could be immediately re-evicted, since August 31st, the date through which execution was stayed, had passed by the time the appeal was decided (id.).^[FN4]

Bornstein is distinguishable from the case before the court as well. In Bornstein, the tenant was afforded due process and had explicitly agreed to vacate by a date certain. Moreover, by the time Bornstein was decided by the Appellate Term, over a year and a half had passed since that date.

Shortly before Bornstein the Appellate Term decided Parkview Apts. Corp. v Pryce (58 Misc 3d 155[A], 2018 NY Slip Op 50187[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]), in which it also cited Soukouna in declining to restore the tenant to possession. Parkview Apts. was a summary holdover eviction proceeding concerning allegations of breach of lease in a cooperative apartment. The tenants appeared in the proceeding, but later defaulted at a subsequent appearance, resulting in entry of a default judgment, issuance of a warrant of eviction, and their subsequent eviction from the apartment. The Appellate Term vacated the default judgment and dismissed{**61 Misc 3d at 513} the petition, finding that the petition failed to allege service of a notice of termination and therefore the petition did not "demonstrate that the tenancy expired prior to the commencement of the proceeding" (2018 NY Slip Op 50187[U], *2). Nonetheless, "in the circumstances of this case, including the overwhelming proof that tenants were in breach of their lease," the court declined the tenants' request to be restored to possession (id.).

But Parkview Apts. is distinguishable as well, inasmuch as, while the owner's petition may have been "fatally defective" (id.), the tenants were not denied due process of law.

Instructive, then, is Bernstein v Rozenbaum (20 Misc 3d 138[A], 2008 NY Slip Op 51558[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]), an illegal lockout proceeding in which judgment was entered against the owner after he defaulted in appearing. Noting that "neither the petitioner nor her mother had a right to remain in the premises subsequent to the expiration of petitioner's mother's lease" (which had expired 10 days before the illegal lockout proceeding was commenced), the court held that the proceeding should have been dismissed as "futile" (2008 NY Slip Op 51558[U], *1-2). Although the facts are different from those before the court, at the very least Bernstein appears to be a case where the tenant or occupant was evicted without due process of law.

In view of the foregoing appellate case law, the motion of Pabon and Rivera to be restored to possession of the apartment is denied. Any claim for damages they may have against petitioner or the marshal may be pursued in a plenary proceeding.

To answer the question posed by the court at the outset, a marshal may only evict those occupants of an apartment who have been given notice of the proceeding and an opportunity to be heard. Although the court does not order that Pabon or Rivera be permitted to reenter the apartment, it finds that Pabon should not have been evicted, as the warrant was not "effective against" him (Cruz, 173 AD2d at 339). So long as petitioners in eviction proceedings fail to name or join all occupants of an apartment in summary eviction proceedings and until the eviction warrant issued by the court no longer commands the marshal to remove "all persons" from a dwelling, untold numbers of individuals will be subject to eviction without due process and without a possible remedy of restoration to possession.{**61 Misc 3d at 514}

Therefore, in accordance with Cruz, henceforth this court will make clear on all possessory judgments that the warrant of eviction issued pursuant thereto shall be effective only as to those individuals against whom the judgment has been entered, despite the commandment to the contrary on the warrant itself.

A copy of this decision is being sent to the general counsel for the New York City Department of Investigation, the city agency responsible for oversight of the city marshals.