Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Petitioner’s Order to Show Cause to Punish Felix Bautista for Willful Disobedience of a Subpoena and to Hold him in Contempt of Court and to Amend the Caption to Substitute Felix Bautista and Manuel Bautista for “John Doe” or to Add them to the Proceeding: Papers Numbered Order to Show Cause & Attached Affirmation and Exhibits A-C 1 Affirmation in Opposition and Exhibits A-B 2 This is a holdover eviction proceeding commenced by petitioner-landlord 2701 Grand Associates LLC against respondent-tenants Julio Encarnacion and Sonia Encarnacion by Notice of Petition and Petition returnable September 15, 2017. The petition is predicated on a Notice to Cure alleging illegal conversion of the respondent-tenants’ Rent Stabilized apartment to “Single Room Occupancy” use, illegal sublet, illegal profiteering and violation of the “Roommate Law”. By Decision and Order dated July 23, 2018, Housing Court Judge Black granted respondent Sonia Encarnacion’s motion for summary judgment on all claims except illegal profiteering and the case was eventually sent to this trial part, where trial began on June 12, 2019 and is scheduled to continue on September 5, 2019 at 9:30 a.m. Presently before the court is petitioner’s motion, brought on by order to show cause and supported by the affirmation of petitioner’s attorney, for certain relief as against two occupants of the subject premises, Felix Bautista and Manuel Bautista: (1) contempt penalties against Felix Bautista for his failure to respond to a subpoena to testify in this proceeding; and (2) amendment of the caption to substitute Felix Bautista and Manuel Bautista for “John Doe”; or (3) joinder of Felix Bautista and Manuel Bautista as additional respondents. While petitioner provided proof of service of the order to show cause in the manner stated in the order on Felix Bautista and Manuel Bautista, neither one appeared in court on the return date. For the reasons that follow, petitioner’s motion is granted to the extent of joining Felix Bautista and Manuel Bautista as additional respondents upon service on them of an amended petition and is otherwise denied without prejudice. The case is next on the court’s calendar for continued trial on September 5, 2019 at 9:30 a.m. CONTEMPT PENALTIES AGAINST FELIX BAUTISTA In her supporting affirmation, petitioner’s attorney asserts that Felix Bautista is a current occupant of the premises who was subpoenaed to testify because he “has information critical to the successful adjudication of the Petitioner’s claims that the Respondents Julio and Sonia Encarnacion are renting the subject premises out as an illegal SRO and profiteering from same.” Petitioner’s attorney asserts that the subpoena was served on Felix Bautista “at his place of business by service upon a person of suitable age and discretion.” Attached to petitioner’s motion is a copy of the subpoena and the affidavit of service of that subpoena. Under Section 753(5) of the New York State Judiciary Law, this court has the power to punish by fine or imprisonment, “A person subpoenaed as a witness, for refusing or neglecting to obey the subpoena, or to attend, or to be sworn, or to answer as a witness.” The power of the court to punish for contempt is a harsh remedy to be used only when other means of enforcement cannot be relied upon, Benson Park Assoc LLC v. Herman (93 AD3d 609, 941 NYS2d 108 [1st Dep't 2012]); Matter of Condon v. Inter-religious Found for Community Org, Inc (2009 NY Misc LEXIS 4679, *11, 2009 NY Slip Op 32518[U] [Sup Ct NY Co 2009]), and may not be exercised in the absence of strict compliance with all required procedures, Bank Leumi Trust Co v. Taylor-Cishahayo (147 Misc 2d 685, 556 NYS2d 211 [Civ Ct Qns Co 1990]). Where the person to be held in contempt is not a party to the underlying action, the party seeking the relief must commence a separate contempt proceeding, independent of the underlying action, guided by the rules governing special proceedings found in Article 4 of the CPLR. As explained by the Appellate Division, Second Department, “a nonparty witness who is not privy to that action and is about to be made a party to a proceeding which may result in fine and incarceration is entitled to the same level of notice required to institute any special proceeding against any new party (see CPLR 403, subds [c], [d]).” Long Island Trust Co v. Rosenberg (82 AD2d 591, 598, 442 NYS2d 563, 567 [1st Dep't 1981]). See also VE Med Care, PC v. Global Liberty Ins Co of NY (2019 NY Slip Op 50205[U], 62 Misc 3d 146[A] [App Term 1st Dep't 2019]); Stupart v. New York City Transit Auth (2017 NY Misc LEXIS 5582, 2017 WL 3952006 [Sup Ct NY Co 2017]). Petitioner’s motion brought on by order to show cause and supported solely by its attorney’s affirmation does not constitute the separate contempt proceeding that is required to subject Felix Bautista, who is not yet1 a party to this proceeding, to contempt penalties. While arguably this reason alone might be an insufficient basis for this court to deny the relief requested by petitioner, Benson Park Assoc LLC v. Herman, supra, this case differs from Benson Park in that, inter alia, whereas the nonparty witness who was the subject of the contempt motion in that case appeared and responded to the motion papers, Mr. Bautista has not appeared in this proceeding. Further, there are other reasons to deny petitioner’s request for contempt penalties against Mr. Bautista. First, while upon signing the order to show cause the court permitted service to be made by first-class and certified mail, it is now apparent based upon the court’s research on this motion that such service was insufficient to obtain jurisdiction over Mr. Bautista. See Long Island Trust Co v. Rosenberg, supra; VE Med Care, PC v. Global Liberty Ins Co of NY, supra. Second, petitioner’s attorney asserts that the subpoena was served on Mr. Bautista “at his place of business by service upon a person of suitable age and discretion” and refers to the attached affidavit of service of the subpoena; however, the motion papers fail to explain either how petitioner knows that such other address was in fact Mr. Bautista’s place of business or why he was served there and not at the subject premises. Third, the underlying subpoena is improper on its face as it includes no statement as to the reason for the subpoena, see generally Matter of Kapon v. Koch (23 NY3d 32, 11 NE3d 709, 988 NYS2d 559 [2014]), and its caption erroneously includes the names of six persons as “Respondent- Undertenants” who do not appear in the original caption. AMENDMENT OF CAPTION TO SUBSTITUTE FELIX AND MANUEL BAUTISTA FOR “JOHN DOE” The caption in this proceeding includes “John Doe” and “Jane Doe” as respondent-undertenants. Section 1024 of the CPLR authorizes the initiation of a proceeding against an unknown party under specified circumstances. The section reads in pertinent part: “A 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.” Any such amendment is contingent upon the moving party’s demonstration “that he conducted a diligent inquiry into the actual identities of the intended defendants”. Goldberg v. Boatmax://, Inc (41 AD3d 255, 256, 840 NYS2d 570, 571 [1st Dep't 2007]). Here, petitioner has not demonstrated that it conducted a diligent inquiry into the actual identities of the intended respondents before commencing this proceeding. Further, Felix and Manuel Bautista could not properly have been made parties when this holdover proceeding was commenced against the leaseholders on September 15, 2017 because they did not live in the subject apartment at that time. This is evident from the sworn testimony at trial on July 25, 2019 of petitioner’s former superintendent, Jorge Cecilio, that Felix Bautista and Manuel Bautista are current occupants of the subject premises who have been living there for “a year and change”. As they moved in after the proceeding was commenced, petitioner’s request that Felix and Manuel Bautista’s names be substituted in the caption for “John Doe” is denied. JOINDER OF FELIX AND MANUEL BAUTISTA Felix and Manuel Bautista are subtenants who are not “necessary” parties 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 NYS2d 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.” Felix and Manuel Bautista 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 NYS2d 695 [App Term 1st Dep't 1995]). See also, e.g., 2655 Realty, LLC v. Berger (50 Misc 3d 1218[A], 31 NYS3d 924 [Civ Ct NY Co 2016]); Acquisition Am v. Diaz (20 Misc 3d 1127[A], 872 NYS2d 689 [Civ Ct NY Co 2008]); Wilson v. 30 Broad St Assocs, LP (178 Misc 2d 257, 679 NYS2d 521 [Civ Ct NY Co 1998]). It is in the interests of justice and judicial economy to join Felix and Manuel Bautista in this proceeding and name them as proper parties. PRC Westchester Ave, LLC v. Doe (2019 NY Misc. LEXIS 3932, *10, 2019 NY Slip Op 51178[U], 4, 2019 WL 3242699 [Civ Ct Bx Co 2019]). Accordingly, Petitioner’s motion to join Felix Bautista and Manuel Bautista as “Respondents-Undertenants” to this proceeding is granted, contingent upon petitioner’s preparation and proper service on them, with copies to the attorney for respondent-tenant Sonia Encarnacion, to respondent-tenant Julio Encarnacion pro se and to respondent-undertenants “John Doe” and “Jane Doe”, of an amended Notice of Petition and Petition. This constitutes the Decision and Order of this Court, copies of which will be mailed out as listed below, unless picked up forthwith in the Part. Dated: August 16, 2019 Bronx, New York
