The Petition in this holdover proceeding seeks a final judgment of possession of the premises located at 60 East Fourth Street, Apt. A2 in the City of Mount Vernon, County of Westchester. Petitioner-Landlord, S Realty, named Taconic Innovation as the Respondent-Tenant. The Petition asserts that the term for the subject premises had expired on March 31, 2019.

Taconic Innovation is an agency created to support individuals with developmental disabilities. Joseph Powell (hereinafter "Respondent") is a recipient of a housing subsidy from Taconic Innovation, and was residing in the subject premises when this action was commenced. The ten (10) day notice to vacate served on Taconic Innovation indicated that S Realty was seeking possession of the premises "due to illegal trafficking and disturbing the other tenants." Taconic Innovation was served and named in the Petition and Notice of Petition. Respondent was never served with the Petition and Notice of Petition, nor was he referenced by his name or by "John or Jane Doe."

Cynthia Lee, a representative of Taconic Innovation appeared in court on the return date of the petition on May 9, 2019 and agreed to the awarding of a judgment of possession to S Realty, and the staying of the execution of the warrant to May 15, 2019.

Respondent contends that he did not appear in court on the return date because [*2]he was unaware of the court proceedings. He maintains that he did not find out about the court proceedings until he received a 72-hour notice. Respondent then filed two pro-se order to show causes which were signed by Judges of this Court. On July 9, 2019, Respondent then retained Legal Services of the Hudson Valley, who filed an Affirmation in Support of Respondent's most recent order to show cause seeking to vacate the judgment and warrant on the grounds that the premises is protected under the Emergency Tenant Protection Act (ETPA), and that Respondent is a necessary party to the proceeding.

S Realty opposes the motion to dismiss and cross moves to amend the petition to add Respondent as a party to this action. S Realty maintains that neither Taconic Innovation nor Respondent have any statutory rights or claim to continued possession of the premises since the lease had expired of its own terms on March 31, 2019, and has not been renewed.

Necessary parties are defined in CPLR § 1001 as, "[p]ersons who ought to be parties if complete relief is to be accorded between the parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants." Proper parties are those whose absence will not prevent the entry of a binding judgment, but whose presence would make an order or judgment more complete. Permissive joinder as defendants under CPLR § 1002(b) is available for those "against whom there is asserted any right to relief jointly, severally, or in the alternative, arising out of the same transaction, occurrence or series of transactions or occurrences."

In eviction proceedings, undertenants may be "proper parties", whom a landlord may choose to join as additional named parties, but "are not 'necessary' parties whose presence is indispensable to the according of complete relief as between landlord and tenant." Triborough Bridge & Tunnel Auth v Wimpfheimer (165 Misc 2d 584, 633 NYS2d 695 [App Term 1st Dep't 1995]). In Wimpfheimer, the court reversed the lower court's order dismissing the petition in its entirety and reinstated it as against the tenants, with leave to the landlord to renew its motion for summary judgment of possession, while upholding the dismissal as against the subtenants who had not been properly named. The Court in Wimpfheimer, citing 170 West 85th Street Tenants Ass'n v Cruz (173 AD2d, 338, 339-40, 569 NYS2d 706, 707 [1st Dep't 1991]), noted that the landlord, "if so advised, may apply for joinder of the subtenants as additional named parties, so that any warrant obtained in this proceeding will be effective against them." (165 Misc 2d at 586, 633 NYS2d at 697). See also, e.g., First Fed Sav & Loan Assn v Albert C Moore et al (157 Misc 2d 877, 599 NYS2d 410 [Yonkers City Ct 1993])(in post-foreclosure holdover proceeding against tenant and subtenant of cooperative apartment, finding it "axiomatic" that a (1) subtenant's rights "stand and fall with the rights of the paramount lease" and (2) "subtenants are not necessary parties to a summary proceeding and are joined in the proceeding at the discretion of the landlord in order to assure that any warrant which may be issued by the court is effective against the subtenant as well as against the prime tenant," citing New York R Corp v Savoy Assoc (239 AD 504, 268 NYS 181 [1st Dep't 1933]).

To avoid the possible dismissal of the Petition, Petitioner cross moves to amend [*3]the caption to include Respondent as a party to this proceeding. Amendments with respect to the parties' names and the proper spelling of names are routinely granted. However, a request to substitute the name of an individual in possession of the premises but who was not served or listed in the caption as a "Doe" is not permitted unless the individual to be added consents to the jurisdiction of the Court. Otherwise, a new proceeding is required. In this action, Respondent has not consented to be added as a party, therefore Petitioner's cross motion is denied.

Given these facts, the Court finds that Respondent is a subtenant who is not a "necessary" party under CPLR § 1001(a) whose presence is indispensable to the according of complete relief as between the landlord and tenant. As explained by the Appellate Division, First Department in 170 West 85th Street Tenants Ass'n v. Cruz, 173 AD2d 338, 569 N.Y.S.2d 705 (1st Dep't 1991), "The rights of a person whose claim to possession derives from the lessee are subordinate and are extinguished by a judgment of possession in favor of the lessor. 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." Rather, they are "proper" parties, whom it is appropriate for petitioner to seek joinder of as additional named respondents "so that any warrant obtained in this proceeding will be effective against them." Triborough Bridge & Tunnel Auth. v. Wimpfheimer, 165 Misc 2d 584, 633 N.Y.S.2d 695 (App. Term 1st Dep't 1995). See also, e.g., 2655 Realty, LLC v. Berger, 50 Misc 3d 1218(A), 31 N.Y.S.3d 924 (Civ. Ct. NY Co. 2016); Acquisition Am. v. Diaz, 20 Misc 3d 1127(A), 872 N.Y.S.2d 689 (Civ. Ct. NY Co. 2008); Wilson v. 30 Broad St. Assocs., L.P., 178 Misc 2d 257, 679 N.Y.S.2d 521 (Civ. Ct. NY Co. 1998).

While dismissal is warranted against the subtenant, the petition will not be dismissed against the named tenant, Taconic Innovation, who appeared in the proceeding and consented to a judgment of possession. The subtenant, while a "proper" party to the instant holdover proceeding, is not a "necessary" party whose presence is indispensable to the according of complete relief as between landlord and tenant (see Wimpfheimer, 165 Misc 2d at 586).

Respondent was not named in the petition, nor did Petitioner name a "John Doe" or "Jane Doe." Respondent's allegations that he has been residing in the apartment have gone unrebutted and Petitioner commenced this proceeding wherein it alleged that Taconic Innovation was engaged in illegal and nuisance activities. S Realty was aware that Taconic Innovation had placed a person inside the premises that was responsible for the behavior complained of, yet they failed to identify that person by name in the petition or name a "John Doe" or "Jane Doe." Pursuant to 170 W. 85th St. Tenants Assoc., permitting Respondent's eviction without him having been named in and served with the petition would deprive him of due process. This Court therefore holds that the warrant of eviction issued herein is not effective as against Joseph Powell. Petitioner and any marshal are hereby stayed from executing the existing warrant of eviction against Respondent.

This constitutes the Decision and Order of this Court.

The Court considered the following papers in this matter: Order to Show Cause, dated June 28, 2019; Affirmation in Support of the Order to Show Cause, dated July 16, 2019; Affirmation in Opposition and Cross Motion dated August 5, 2019; Affirmation in Reply dated August 9, 2019.