Recitation pursuant to CPLR §2219 (a) of the papers considered in the review of Petitioner’s motion to substitute, amend, and dismiss:Papers NumberedNotice of Motion, Affirmation, Affidavits Annexed, Ex. A-J, 1-2 1Opposition Affirmation, Affidavit Annexed, Ex. A-C 2Reply Affirmation & Affidavit Annexed 3DECISION & ORDER In this holdover proceeding alleging an illegal sublet, Petitioner moves to amend the notice of petition and petition nunc pro tunc to substitute “Claudine Davis” and “Rosaline Davis” in place of Respondents “John Doe” and “Jane Doe,” respectively; for discovery; and to dismiss the fourth affirmative defense and first and second counterclaims. Respondent Jobe Davis (Jobe) has agreed to resolve that part of Petitioner’s motion seeking discovery pursuant to a January 25, 2019 stipulation, but otherwise opposes the remainder of the motion.1Factual and Procedural BackgroundPetitioner is the owner of the building located as 266 Washington Avenue in Brooklyn. Respondent Jobe Davis (Jobe) has been the rent-stabilized tenant of record in apartment B15 in the building (the premises) since 1988. Petitioner commenced this proceeding claiming that Jobe and/or Jobe’s wife, Claudine Davis (Claudine), illegally sublet the premises to Brenda Bennett (Bennett), Michael “Doe,” Thomas “Doe” a/k/a Tommy “Doe,” and others (collectively, the sublettors). Petitioner alleges that Respondents have been profiteering by collectively charging the sublettors a monthly rent in excess of the legal regulated rent for at least the past two years.Petitioner claims that it obtained information pertaining to Claudine’s and Rosaline’s identity from a transcript of an illegal lockout proceeding2 brought by Bennett wherein Jobe asserted that “a sister of my wife asked us to deal with Mrs. Bennett”. Additionally, Petitioner’s counsel claims that he learned of Respondents true names from Jobe during a December 20, 2018 Court appearance for this proceeding, and soon thereafter moved for the instant relief.After Petitioner commenced this proceeding, Respondents answered with four affirmative defenses and two counterclaims. As relevant here, the fourth affirmative defense and second counterclaim both allege that violations of the warranty of habitability exist at the premises including, among others, mice infestation, and a bathroom ceiling leak and hole. Respondent’s first counterclaim alleges violation of the Housing Maintenance Code and the issuance of an order to correct those violations.ArgumentsOn its motion, Petitioner argues that Claudine and Rosaline were not named in the petition because Petitioner purchased the building or about “April 11, 2017.” In support, Petitioner annexes the affidavit of Michael C. Rowan, who avers that he is a senior staff attorney for A&E Real Estate Management, LLC, the current managing agent for the building. Rowan avers that “Petitioner purchased the Building only recently and in the approximately last one-and-one-half years that it owned the Building, it did not become aware of Claudine and Rosaline until recently.” Additionally, Petitioner argues that substitution should be granted because Respondents are not prejudiced. Lastly, Petitioner contends that Respondents’ fourth affirmative defense and both counterclaims should be dismissed because Petitioner had no prior notice of the conditions alleged in the answer.In opposition, Respondent contends that Petitioner was not ignorant of these individuals because it has not demonstrated that it made a timely effort to identify them prior to commencing this proceeding. In support, Respondents annex an affidavit by Jobe, who avers that every year or every other year, he submits a form containing his household information that includes Claudine’s and Rosaline’s name and social security number, and further that the prior managing agent was aware of Claudine’s identity because she issued personal rent checks in her own name. But the forms that Jobe annexes are dated in or around October 24, 2006 and are addressed from the previous management company. Lastly, Respondents contend that Petitioner’s assertion that it had no notice of the conditions alleged in the fourth affirmative defense and counterclaims is belied by an HPD inspection summary report on May 22, 2017 listing three B and one A violations, including nuisance consisting of mice and roaches.In reply, Petitioner submits another affidavit from Rowan, who clarifies that Petitioner’s current members acquired ownership of Petitioner and “took over management of the building” on February 17, 2015. Rowan does not explain how this date reconciles with the “April 11, 2017″ purchase date mentioned in his moving affidavit. Further, Rowan avers that the prior managing agent did not provide Petitioner or the current managing agent with a complete tenant file, and there exists no information in Petitioner or A&E’s possession “which serves to put Petitioner on notice of [Claudine] or [Rosaline's] current occupancy of the Apartment.” Lastly, Petitioner points to defects in Respondent’s submissions in opposition to the motion as they are dated 12 years prior to the commencement of this proceeding.DiscussionA party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly (CPLR 1024).Decisions from this Appellate Department indicate that the court’s primary concern in permitting the prosecuting party’s use of CPLR 1024 is the circumvention of the statute of limitations (see U.S. Bank Nat. Ass’n v. Losner, 145 AD3d 935, 937 [2d Dept 2016] ["a plaintiff must show that he or she made timely efforts to identify the correct party before the statute of limitations expired"]; Porter v. Kingsbrook OB/GYN Assoc., P.C., 209 AD2d 497, 497 [2d Dept 1994] [requiring "genuine efforts to ascertain the defendants' identities prior to the running of the Statute of Limitations"]; Comice v. Justin’s Rest., 78 AD3d 641, 642 [2d Dept 2010]; Justin v. Orshan, 14 AD3d 492, 493 [2d Dept 2005] [same]; Scoma v. Doe, 2 AD3d 432, 433 [2d Dept 2003] [same]). But the Appellate Term of this Department has held in a summary proceeding that “a [petitioner] must show that he or she made timely efforts to identify the correct party…” prior to commencing the action (see RR Reo II, LLC v. Omeje, 33 Misc 3d 128(A) [App Term, 2d Dept 2011] [emphasis added]; see also Siegel, N.Y. Prac. §188 [6th ed] ["a diligent effort to learn the party's name is a condition precedent to the use of CPLR 1024, which should therefore be turned to only as a last resort]). Thus, “[i]f the plaintiff knows, or reasonably should know, the defendant’s true name, an unknown party designation in the summons will generally be treated as a jurisdictional defect, and the failure to exercise due diligence to ascertain the defendant’s true name subjects the complaint to dismissal as to that party” (see Redstone Garage Corp. v. New Breed Automotive, Inc., 54 Misc 3d 126(A) [App Term, 2d Dept 2016] citing Bumpus v. New York City Tr. Auth., 66 AD3d 26, 30 [2d Dept 2009]).Here, Petitioner fails to state in its moving papers whether it made timely efforts to identify the correct parties prior to the commencement of the proceeding. Petitioner’s belated attempt to cure this initial failure in Rowan’s carefully-worded affidavit that it lacked documents to put it “on notice” of Jobe’s family members — despite his 30-year, rent-stabilized tenancy — does not satisfy Petitioner’s burden.On the other hand, Jobe avers in his affidavit that, on an annual or bi-annual basis, he sent updated family household information forms to Petitioner, and that he fails to annex proof of these forms only because he neglected to make a copy of them before mailing them. Petitioner, for its part, does not address Jobe’s claims that such documents were solicited and received, even though it admittedly took over management of the building some three years ago. Finally, this Court notes that denial of the motion does not prejudice Petitioner’s claims, as it may re-commence the instant proceeding based on alleged profiteering — an incurable nuisance.3Lastly, that part of the motion seeking dismissal of the fourth affirmative defense and counterclaims sounding in breach of the warranty of habitability is denied. Namely, Petitioner’s denial of notice of any disrepair at the premises are belied by the 2017 HPD report, as inter alia the violations based on rodent infestation contained therein mirror those of the conditions alleged in the verified answer. Accordingly, it isORDERED that Petitioner’s motion is denied in its entirety; and it is furtherORDERED that Respondents “John Doe” and “Jane Doe” are hereby dismissed from this proceeding; and it is furtherORDERED that the parties and attorneys are directed to appear on March 7, 2019 at 9:30 a.m. in Part J for trial/settlement.Dated: February 8, 2019
