Recitation, as required by C.P.L.R. §2219(a), of the papers considered in review of this motion.Papers/NumberedNotice of Motion and Affidavits Annexed 1Order to Show Cause and Affidavits Annexed Answering Affidavits 2Replying AffidavitsExhibitsOtherProcedural History and Facts This is a nonpayment proceeding brought by Petitioner against Frank Taveras, the tenant of record at the subject rent-stabilized premises. The Petitioner commenced the proceeding with the service of a rent demand and Notice of Petition and Petition on Frank Taveras. Mr. Taveras never answered the proceeding, and a judgment of possession was issued on July 19, 2018. On July 29, 2018, a warrant was issued to a Marshal. On August 29, 2018, Lourdes Felix appeared in the proceeding by Order to Show Cause after receiving a notice of eviction at the premises. Ms. Felix was given an adjournment to seek legal counsel. On October 17, 2017, the Legal Aid Society appeared in the proceeding as counsel to Ms. Felix. The case was adjourned twice more. By a motion returnable January 29, 2018, Ms. Felix moved to dismiss the proceeding on the grounds that this court lacks subject matter jurisdiction because Mr. Taveras no longer lives in the apartment1, and on the basis that Petitioner has failed to name a necessary party to the proceeding pursuant to CPLR 1001. In the alternative, the motion seeks leave for Ms. Felix to be intervened in the proceeding pursuant to the New York City Civil Court Act §110(d) based on her independent possessory right to the apartment, and for leave to serve a late answer.In her affidavit in support of her motion, Ms. Felix states that she resided in the apartment with Mr. Taveras from the fall of 2014 (aff of Felix at 3) until his departure in February 2017 (aff of Felix at 8). In July 2015, their daughter Fraydie Taveras Felix was born (Felix aff, exhibit E) and the three of them lived together in the apartment until Mr. Taveras’ departure in February 2017 (aff of Felix at 8.) Ms. Felix asserts that she had a non-traditional family relationship with Mr. Taveras such that would entitle her to succession of the apartment in that she had an emotionally intimate relationship with Mr. Taveras for more than two years prior to his departure from the premises, they held each other out as husband and wife, and they co-mingled their finances (Felix aff at 3-7). Ms. Felix states that in February 2017 she informed Petitioner that Mr. Taveras departed from the apartment and asked for a lease in her own name and was declined (Felix aff at 9). She also states that the Human Resources Administration attempted to send shelter checks to Petitioner on her behalf, but, upon information and belief, they were returned (Felix aff at 10). Ms. Felix subsequently applied for a rent arrears grant which was denied because she is not the tenant of record (exhibit G). Ms. Felix attaches the following Exhibits to her affidavit in support of her succession claim: a copy of her daughter’s birth certificate (exhibit D), a Capital One Bank statement from October 2015 (exhibit H), and partial tax returns from 2015 and 2016 which state her residence as the subject premises (exhibit I).Petitioner opposes the motion through an attorney affirmation. Petitioner’s attorney states this court has subject matter jurisdiction over this proceeding because it properly served the only individual to its knowledge that was in possession of the subject apartment, that it had no knowledge that Ms. Felix (and her child whose biological father is Frank Taveras) were living in the apartment. Aside from this statement, Petitioner does not explain how in this 16 unit building, neither Petitioner nor any of its agents ever saw Ms. Felix or her child inside, or coming and going from the premises.2 Regardless, Petitioner has known that Ms. Felix is residing in the apartment with her minor child since she appeared in this proceeding in August 2017, yet it has not moved to join her as a party.The Court does not credit Petitioner’s attorney’s statements in opposition as they are not supported by the affidavit of anyone with personal knowledge, and, thus, Felix’s sworn statements have gone unrefuted.3Petitioner further states that Taveras’ surrender of the apartment has not been established and that Ms. Felix cannot prove that she is a successor tenant. However, Ms. Felix need not prove her colorable claim to succession at this point, an element of which will be Taveras’ permanent vacatur from the apartment.DiscussionWhile Petitioner has a warrant to evict Frank Taveras, it is not effective against Ms. Felix. (170 W. 85th St. Tenants Assn. v. Cruz, 173 AD2d 338, 569 N.Y.S.2d 705.) As held in Cruz, “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 (CPLR 401; CCA 110 [d]).” (Id at 339-340.) The Cruz court specifically contemplated the joinder of a natural person through the mechanisms provided in New York City Civil Court Act §110(d).4In Creagh v. Stilwell (128 Misc 2d 213, 489 N.Y.S.2d 690 [Civ Ct, New York County 1985]) the court parsed the issue of whether joinder of a party in a summary proceeding pursuant to New York City Civil Court Act §110(d) is proper where, as here, the claim sought to be interposed is not related to housing maintenance standards. The Creagh court permitted joinder of an owner in a holdover proceeding pursuant to CPLR 401 since “in the interests of justice and to promote judicial economy,” it was preferable to have the respondent’s right to possession as against both the alleged sublessor and the owner determined in one litigation. (Id at 215); see also 340 E. 93rd St. Corp. v. Janis, NYLJ, Feb. 9, 1991, at 1, p 29 [AT 1st Dep't] [assignee of a proprietary lease was found to have standing to answer and defend on the ground that he was the real party in interest whose rights may have been inequitably affected by the judgment rendered in the proceeding]). The Cruz court also instructs that joinder of a natural person can be effected through the mechanisms provided in CCA Section 110. (170 W. 85th St. Tenants Assn. v. Cruz, 173 AD2d 338, 340).In this case, Felix seeks to be added as a party to the proceeding in order to assert her potentially meritorious succession claim. The Court recognizes that a claim to succession is not a defense to a nonpayment proceeding, though it may give an occupant standing to assert defenses to the nonpayment proceeding, at least to the extent of demonstrating that the statutory prerequisites to the proceeding. (Rochdale Vill., Inc. v. Goode, 16 Misc 3d 49, 842 N.Y.S.2d 142 [App. Term 2007].) Here, it is clear to the Court from the totality of Felix’s submissions, that Felix’s true interest is to be joined in this proceeding, not to dismiss the proceeding on a technicality, but in order to preserve her home, and to qualify as a person with a lease in her own name for public assistance benefits which would pay the arrears and ongoing rent for the premises. If Felix ultimately prevails on her succession claim in this proceeding (or in a subsequent holdover proceeding against her which the Petitioner would be obliged to bring as the warrant of eviction in this case is not effective against her), not only would she be entitled to a rent stabilized lease in her own name, but she would also be able to apply for assistance from the Human Resources Administration (“HRA”) in order to make the landlord whole.5The Court is guided by Acquisition Am. v. Diaz, 20 Misc 3d 1127[A], 872 NYS2d 689 [Civ Ct NY Co 2008], in which the Hon. Judge Lebovits found that the son of the tenants of record who had lived in the apartment since birth had standing to appear in a nonpayment proceeding and to be heard on his claim of succession rights. In Diaz, the court distinguished between holdover and nonpayment summary proceedings, opining that “[t]he petitioner’s goal in a holdover is to secure vacant possession. In nonpayment proceedings, the same need is absent: What a petitioner seeks in a nonpayment proceeding is for the rent to be paid.” (Id at *2.) The court refused to enforce the judgment against Diaz’s parents to effect Diaz’s eviction, and set the proceeding down for a hearing on succession, reasoning that Diaz “should not be evicted before he has a chance to request help from DSS, a request he cannot make successfully if he has no recognized tenancy rights.” (Id at *4.) The same facts and concerns are present in the instant case.The Court is mindful of 523 West 138th Street Realty Co., Inc. v. Castillo (NYLJ, Aug. 14, 1990, at 17, col 1 [App Term, 1st Dept per curiam]), but that case is inapposite here. Castillo was a nonpayment proceeding which was discussed at length in Diaz, above. As described in Diaz,the [Castillo] court held that the record tenant’s brother-in-law was not a necessary party to the proceeding and could be evicted The Appellate Term in Castillo allowed the petitioner to evict the record tenant’s brother-in-law because the petitioner did not know about the occupant’s residency in the apartment when it commenced its proceeding and because the brother-in-law did not claim independent possessory rights.The facts in Castillo are distinguishable from the instant case because it is unrefuted that Petitioner knew of Ms. Felix’s presence in the apartment, and because she has made a colorable claim to succession. In Castillo, unlike in this case, the brother-in-law did not and could not have asserted a valid claim to succession to the tenancy. The Court is also mindful of 54 Featherco, Inc. v. Correa NYLJ, July 30, 1997 [App. Term, 1st Dept.][an occupant who does not have succession rights has no standing to defend a nonpayment proceeding], affd. 251 AD2d 23, 673 N.Y.S.2d 658 [1998], but that case is also inapposite to the case at bar. Here, Ms. Felix has a colorable claim to succession.6Were Felix not permitted to assert her succession claim now, she most certainly would raise it in a subsequent licensee or illegal sublet proceeding which Petitioner would be obliged to commence as the warrant to evict Respondent-Taveras is not effective against her, and Petitioner is now well aware that she claims possession of the apartment. If Felix is not joined in this proceeding, her claims to succession may go unheard,7 and she and her young child with the tenant of record will be at risk of eviction, either in this proceeding or a subsequent proceeding to remove her as a licensee where she would be entitled to a trial on this claim.DecisionFor the foregoing reasons, the Court finds Lourdes Felix to be a proper party to this proceeding and hereby joins her in this proceeding pursuant to CPLR 401 and the New York City Civil Court Act §110(d) for the purposes of having a hearing on her colorable claim of succession rights to the apartment. It is the opinion of this Court that joinder of Ms. Felix is necessary in order to provide complete relief in this one proceeding which is in the interests of justice and judicial economy. The proceeding is hereby calendared for a hearing on Ms. Felix’s succession rights on June 15, 2018, at 9:30 a.m., Part E, Room 420.As this constitutes the decision and order of the Court, the remainder of Ms. Felix’s motion is not considered.DATED: May 7, 2018Bronx, New York
