Opinion
77098/2015
11-01-2016
Citywide Preservation LLC, Petitioners, v. Papa Fall, Respondent.
Cullen & Associates, PC, New York City, for Petitioner. New York Legal Assistance Group, New York City, for Movant Aminata Sow.
Cullen & Associates, PC, New York City, for Petitioner. New York Legal Assistance Group, New York City, for Movant Aminata Sow. Michael Weisberg, J.
This is a nonpayment summary eviction proceeding. Respondent Papa Fall failed to answer the petition and Petitioner was awarded a default judgment of possession. Fall's tenancy is rent stabilized. No other individuals were named (or served) as respondents in the petition. Aminata Sow has moved for various relief: dismissing the petition on the ground that Sow is a necessary party and she was not named or served; vacating the default judgment; or staying execution of the warrant of eviction.
Procedural History
Sow is now represented by counsel, but she appeared earlier in this proceeding pro se. By order to show cause dated November 6, 2015, Sow moved to vacate the default judgment. In her affidavit in support of the motion she alleged that she is the cousin of Fall, that the only notification of the proceeding that they received was a postcard, and that Fall had recently had a personal emergency and that he was returning (presumably from out of town) in a week. Even though the motion was returnable almost two weeks later, Fall did not appear in court on the return date. The proceeding was adjourned to December 21st for Fall to appear.
Fall did appear in court on December 21st and entered into an agreement whereby execution of the warrant of eviction was stayed so long as a payment scheduled was adhered to. Although Fall had never sought any relief via motion, the agreement begins with a statement that "Respondent's OSC granted as follows ." It is unknown whether Sow was in court on that day.
In mid-February 2016 Sow moved pro se for a stay of eviction, claiming in her affidavit that Petitioner had refused to accept a payment. She also alleged in her affidavit that Petitioner had commenced a holdover under index number 51963/16. She defaulted on the return date of the motion, and this time Fall did not appear either.
This motion then followed. In her affidavit in support of the motion Sow this time alleges that she is Fall's sister-in-law. After moving pro se, Sow retained counsel who submitted a supplemental affirmation along with a supplemental affidavit from Sow.
Illegal Sublet Holdover
In February 2016 Petitioner commenced a holdover summary proceeding against Fall under index number 51963/16. Petitioner alleged that Fall was subletting the apartment without permission and that the sublessee was Sow. The notice to cure containing these allegations as well as an alleged alternate address for Fall is dated November 24, 2015. That proceeding was discontinued in September 2016 by stipulation between Petitioner and Sow. It does not appear from the file that Fall ever appeared in that proceeding.
Facts
The thrust of Sow's argument is that Petitioner allegedly had "actual and constructive knowledge that she and her daughter are the sole tenants of the subject premises" and thus she should have been named and served as a necessary party In her supplemental affidavit Sow alleges that she and her eleven-year-old daughter live in the apartment and that the "management office" has known for at least two years that she has been living in the apartment. She bases this claim of knowledge on her alleged visits to the management office in 2014 and 2015 at which time she asked to be added to the lease.
Sow does not mention Fall at all in her supplemental affidavit, except to state that her request to be added to the lease was rejected because she and Fall are not related. It's unclear if this is an admission that she and Fall are not related or whether she is claiming that Petitioner did not believe that she and Fall are related. Either way, the affidavit does nothing to clear up whether Sow is Fall's cousin, his sister-in-law, or whether there is no family relationship at all.
Sow's attorney alleges in her affirmation that she should have been named in the petition because "she has succession rights to the apartment from the tenant of record." But nowhere in counsel's affirmation or in Sow's affidavit are the factual predicate for a succession rights claim set forth. In addition to the lack of clarity as to the nature of Sow's relationship with Fall, there are no allegations as to when Sow moved into the apartment or when Fall vacated the apartment. Similarly, in Sow's verified answer in the holdover proceeding she alleges succession rights but does not allege any facts to support that claim.
For its part, Petitioner's opposition comprises only an affirmation of counsel; there is no affidavit from anyone with personal knowledge. As such, there are no denials of Sow's claims regarding knowledge of her occupancy. Instead, Petitioner claims via counsel that because the management company manages thousands of apartment in all five boroughs, and because Sow's affidavit is "so broad, conclusory, and lacking in factual allegations so as to constitute a legal nullity it is impossible for management to determine whom, if anybody, met with and/or spoke with Ms. Sow." Petitioner also claims that the essential facts are undisputed: that Fall has "long ago vacated" and that Sow is not entitled to succession because she never lived with Fall and because she is not related to him.
Petitioner's claim, via counsel, that Fall vacated "long ago" notwithstanding, registered managing agent Anthony Calascibetta swore in his affidavit of military investigation that he visited the apartment on September 28, 2015 and spoke personally with Fall regarding his military status or lack thereof.
In reply, Sow attempts to flesh out her allegation as to Petitioner's knowledge of her occupancy by alleging that she visited the management office at least twenty times since moving into the apartment and that the building superintendent knows her well. However, these allegations are only made in the affirmation of Sow's attorney. There is no further affidavit from Sow.
Analysis
The Appellate Division, First Department, has stated that 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 (170 W. 85th St. Tenants Assoc. v Cruz, 173 AD2d 338, 339-340 [1st Dept 1991]; see also Triborough Bridge and Tunnel Authority v Wimpfheimer, 165 Misc 2d 584, 586 [App Term, 1st Dept 1995] ["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 as against them"]; 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"]). This would appear to be the rule whether or not a petitioner has any notice, actual or constructive, that there are subtenants, licensees, or other occupants in the apartment.
Sow was not named in the petition, nor did Petitioner name a "John Doe" or "Jane Doe." Sow's allegations that she has been residing in the apartment have gone unrebutted and Petitioner commenced a proceeding wherein it alleged that Sow was an unauthorized sublessee. Pursuant to 170 W. 85th St. Tenants Assoc., permitting Sow's eviction without her having been named in and served with the petition would deprive her of due process. This court therefore holds that the warrant of eviction issued herein is not effective as against Aminata Sow and her daughter. Petitioner and any New York City marshal are hereby stayed from executing the existing warrant of eviction against Sow and her daughter.
Petitioner points out that Sow's name is not listed in the caption of the notice of eviction. However, the actual warrant of eviction commands the marshal to remove Fall "and all other persons from the following described premises." This language would appear to be required by RPAPL § 749(1), which commands the court to issue a warrant "commanding the officer to remove to remove all persons, and to put the petitioner into full possession." In contrast, the default judgment on which the warrant is based orders that a warrant issue "removing all named respondents."
The court does not maintain a copy of the warrant in the court file. The original warrant is delivered to the marshal and then returned to the court, and maintained in a separate file, after the warrant has been executed. A copy of the warrant is saved in the court's case management system and is appended hereto.
Sow's motion is denied in all other respects. To the extent that Sow's argument is that she is a necessary party because she has succession rights to Fall's tenancy, she has failed to allege sufficient facts to demonstrate the existence of a meritorious succession claim.
Additionally, while a subtenant is a "proper" party to a summary eviction proceeding, she is not a "necessary" party whose "presence is indispensable to the according of complete relief as between the landlord and tenant" (1234 Broadway LLC v Hsien Hua Ying, 50 Misc 3d 140[A], 2016 NY Slip Op 50190[U] [App Term, 1st Dept 2016]). She has not demonstrated any basis to vacate the default judgment against Fall and dismiss the petition.
This constitutes the decision and order of this court. Dated:November 1, 2016
_____________________________ Michael L. Weisberg