Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:Papers NumberedNotice of motion and affidavits annexed 1Order to Show Cause and affidavits annexedAnswering affidavits 2Replying affidavits 3ExhibitsStipulationsOtherDECISION/ORDER Petitioner commenced this summary holdover proceeding to recover possession of the premises, Apartment 5B, located at 5610 Netherland Ave., Bronx, New York, 10471. The proceeding was commenced after service of a ten day notice of termination alleging respondent is in violation of RSC 2524.3(b) in that he, or members of his household or guests have verbally harassed other tenants in the building on a constant, continuing and ongoing basis. Respondent moves for dismissal alleging that petitioner failed to name necessary party, to wit: Solon Karalesis (hereinafter “Solon”), the son of named respondent Vagelis Karalesis (the Court notes that the parties seem to agree that Isad Karalesis, the second named respondent, is deceased). In the alternative respondent seeks a traverse hearing, alleging service of process was not done properly. The threshold question that the Court must address is, is Solon a necessary party thus needing to have been named in this proceeding. The Court answers this question in the negative for the reasons set forth below.It is correct to say that, when a landlord knows the name of a “necessary party”, they should not use a fictitious name but should name that party correctly. CPLR 1001(a) defines a necessary party as “Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants.” Triborough Bridge and Tunnel Authority v. Wimpfheimer, 165 Misc. 2d 584, 586; 633 N.Y.S.2d 695 (AT 1st Dept, 1995). “The subtenants, while “proper” parties to the instant holdover proceeding, are not “necessary” parties whose presence is indispensable to the according of complete relief as between landlord and tenant.”. (Emphasis added, citations omitted). And see CPLR 1001(a) defining a necessary party as “Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants.”Petitioner may not designate a party as “John Doe” or “Jane Doe” when there is actual knowledge of the party’s identity. “If none of the name is known, then a completely fictitious name may be utilized. However, such a designation can only be made if the designating party does not know all or part of the other party’s name; otherwise, the party must be identified to the extent that his or her name is known.” First Federal Savings and Loan Association of Rochester v. Souto, 158 Misc. 2d 219; 601 N.Y.S. 2d 43 (Civ. Ct. New York Co., 1993). Further, “a petition naming the respondent as ‘John Doe’ or ‘Jane Doe’ is subject to dismissal if the true identity of the respondent is known to the petitioner when the proceeding is commenced.” Varveris v. Infante, N.Y.L.J. Sept. 15, 1993, p. 25, col. 3 (Civ. Ct. Queens Co.), citing ABKCO Industries v. Lennon, 52 A.D. 2d 435; Capital Resources Corp. v. “John Doe” and “Jane Doe”, N.Y.L.J. June 17, 1992, p. 25, col. 6 (Civ. Ct. Kings Co.). Petitioner must further establish that a diligent effort has been made to ascertain the identity of the party. “It must be demonstrated that the persons named as unknown are actually unknown. To make that showing, counsel should present an affidavit stating that a diligent inquiry has been made to determine the names of such parties.” Capital Resources Corp. v. John Doe, 154 Misc. 2d 864; 586 N.Y.S. 2d 706 (Civ. Ct. Kings Co., 1992); Chavez v. Nevell Mgmt. Co., 69 Misc. 2d 718; 330 N.Y.S. 2d 890 (Civ. Ct. New York Co., 1972); 2 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 1024.04. “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.” George Tut & company v. Jane Doe, 2008 Slip Op 28264; 20 Misc. 3d 815; 862 N.Y.S. 2d 428 (Civ. Ct. Kings Co., 2008); Siegel, NY Prac. §188 at 304 (3d ed). “If a petitioner knows a party’s name, or fails to demonstrate that diligent efforts were made to learn a party’s name, then use of a fictitious name is not authorized by CPLR 1024 and the petition is rendered fatally defective as to that party.” Pinnacle Bronx East v. Bowery Residents Committee Inc., 2006 N.Y. Misc. LEXIS 4025; 235 N.Y.L.J. 60 (Civ. Ct. Bronx Co., 2006), citing Triborough Bridge and Tunnel Auth. v. Wimpfheimer, supra; First Fed. Savings and Loan Assoc. of Rochester v. Souto, supra.Here, Solon claims that petitioner should know his name because he is listed on his father’s SCRIE applications. To this Court’s understanding those applications go directly to SCRIE, not to the landlord, thus there is no basis to assume a landlord would know the names on such an application beyond the actual tenant on the lease. The Court notes that no part of the SCRIE application need be completed by the landlord of the premises, thus there is no reason for a landlord to have any knowledge of the contents of such an application. There is no other allegation that petitioner had any contact with, or direct knowledge of, Solon being in the apartment, thus no proof that petitioner knew, or should have known respondent’s name.Further, and more importantly, Solon is not a necessary party. Any rights he has to occupy the subject apartment flow directly from his father, and would terminate upon his father’s eviction. As the child of a tenant, Solon is not a necessary party and didn’t even have to be named, nor served with process, in this proceeding. Loira v. Anagnastopolous, 204 A.D.2d 608, 612 N.Y.S.2d 189 (AD2d, 1994), where the court stated: “There is no merit to the plaintiff’s contention that she should have been made a party to the holdover proceeding in the Civil Court. Since the plaintiff is merely the daughter of the tenant, she can be removed from the premises even though she was not a party to the holdover proceeding” (emphasis added, citations omitted); and 170 W. 85th St. Tenants Assn. v. Cruz, 173 A.D.2d 338, 569 N.Y.S.2d 705 (AD 1st, 1991): “In the instant proceeding, respondent can point to no statutory basis requiring him to be served with notice. Absent a surrender of possession by the tenant (see, Matter of Eight Cooper Equities v. Abrams, 143 Misc 2d 52, 54-55 [surrender is accomplished by vacating the premises and returning the keys to landlord]), which is not established by the record before us, the lessor must obtain a judgment of possession against the lessee pursuant to RPAPL 711 and may not proceed directly against the undertenant, whether licensee, subtenant or occupant,…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 (CPLR 401; CCA 110 [d]). 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.” (At 339-340 — emphasis added). See also Flak v. Kaye, 19 HCR 718B, NYLJ 12/9/91, 28:2 (AT, 1st Dept )[named respondent being the only tenant of record her son was not a necessary party to the proceeding]; City of New York v. Boykin, 22 HCR 214A, NYLJ 4/4/94, 27:4 (AT 1st Dept)[the rights of a person whose claim to possession derives from the lessee are subordinate and are extinguished by a judgement of possession in favor of lessor and where notice of termination and notice of petition and petition named 'John Doe' as a respondent any warrant issued is fairly enforced against the mother of the named tenant whose occupancy was wholly incident to her son's tenancy, and the court erred in holding otherwise]; Laufer v. Malmuth, 23 HCR 566A, NYLJ 9/18/95, 27:2 (AT 1st Dept)[failure to join tenant's husband is not a valid defense since he was not a signatory to the lease and is not a necessary party]; NYCHA v. Kilafofski, 24 HCR 326B, NYLJ 6/6/96, 36:4 (AT 2nd & 11th Dept)[court finds that the adult daughters of the tenant are not necessary parties to the proceeding].That Solon might have succession rights to his father’s tenancy does not come into the equation as those rights would only ripen if his father, Vagelis Karalesis, were to have vacated the subject apartment voluntarily, surrendered his tenancy rights and his keys, or if he were to be deceased. Neither of those occurrences having happened, Solon cannot claim succession rights to a tenant the petitioner is trying to evict, since any rights of possession he might possess now are subordinate to, and flow through, his father, and would be terminated by a judgment of possession against his father. Succession rights do not come into play when the named tenant is evicted. The judgment of possession, cancelling the tenancy, also cancels any rights of any other occupants in the apartment who are not named tenants on the lease.The alternative relief requested, a traverse, is granted. This Court, in a prior decision/order in this proceeding, dated September 4, 2018, denied petitioner’s motion to strike the affirmative defense of traverse, stating that the allegations in the answer were “…more than adequate to challenge service of process.”. Thus, having previously determined that the defense of traverse is adequately raised, respondent is entitled to a hearing on the issue of service of process. The proceeding is restored to the Court’s calendar on June 25, 2019, at 9:30 am, for a traverse hearing. In all other respects the respondent’s motion is denied.This is the decision and order of the Court. Copies are being mailed to both sides.Dated: June 5, 2019Bronx, New York
