Deutsche v Turner w

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[*1]

Decided on April 22, 2011Civil Court of the City of New York, Bronx County

041152/2010

Petitioner was represented by: Juan Restrepo, Novick Edelstein, of counsel to Stein &Sheidlower, L.L.P.

Respondent was represented by: Matthew Tropp, Legal Aid Society

Steven Weissman, J.

This summary holdover proceeding was commenced by Deutsche Bank National Trust

Company, as Trustee of the IndyMac INDX Mortgage Trust 2006-AR25, Mortgage Pass-

Through Certificates, Series 2006-AR25 under the Pooling and Servicing Agreement dated

July 1, 2006 ("Deutsche Bank") to recover possession of the First floor apartment located at

896 E. 241st Street, Bronx, New York 10466. The petition, notice of petition and notice to

quit name [*2]Elaine Turner, Percival Turner, Yvette Jeffries, John Doe, Jane Doe, Richard

Roe and Cora Coe as respondents. The notice to quit was also addressed to all other persons

occupying the entire premises. Petitioner's affidavits of service alleged conspicuous place

Deutsche Bank Natl. Trust Co. v Turner

2011 NY Slip Op 51153(U)

Decided on April 22, 2011

Civil Court Of The City Of New York, Bronx County

Weissman, J.

Published byNew York State Law Reporting Bureau pursuant to Judiciary Law 431.

This opinion is uncorrected and will not be published in the printed OfficialReports.

Deutsche Bank National Trust Co., AS TRUSTEE OF THE

INDYMAC INDX MORTGAGE TRUST 2006-AR25,MORTGAGE PASS-THROUGH CERTIFICATES, SERIES

2006-AR25 UNDER THE POOLING AND SERVICINGAGREEMENT DATED JULY 1, 2006, Petitioner,

against

Elaine Turner, PERCIVAL TURNER, YVETTE JEFFRIES,

JOHN DOE, JANE DOE, RICHARD ROE, CORA COE,Respondent.

Page 1 of 4Deutsche Bank Natl. Trust Co. v Turner (2011 NY Slip Op 51153(U))

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service of the petition, notice of petition, and notice to quit on Elaine Turner, Percival

Turner, Yvette Jeffries, John Doe, Jane Doe, Richard Roe, and Cora Coe.

Respondent (Gerda Southwell), by counsel, moved for dismissal of the instant holdover

proceeding pursuant to CPLR 3211(a)(10) for failure to name a necessary party, and/or

CPLR 3211(a)(7) for failure to state a cause of action, and/or NY RPAPL 741(4) for

failure to name a necessary party, depriving the court of subject matter jurisdiction under

NY CPLR 3211(a)(2) for failure to name or serve Gerda Southwell, the occupant of the

subject premises, as a respondent. Respondent further moved to dismiss pursuant to CPLR

3211(a)(7) for failure to state a cause of action and/or, pursuant to CPLR 3211(a)(2) for

lack of subject matter jurisdiction alleging a defective notice to quit. In the alternative,

respondent moved to interpose a late answer under CPLR 3012(d) and for such other relief

the court deems just and proper.

Foreclosure proceedings were commenced in the Supreme Court of the State of New

York for Bronx County on March 5, 2008 in the action IndyMac Bank F.S.B. v. Elaine

Turner, Percival Turner, IndyMac Bank, FSB and Yvette Jeffries, Index No. 380408/08.

A judgment of foreclosure and sale was entered on January 11, 2010, and Anthony J.

Centone, Esq. was appointed Referee for the purpose of selling the premises. A Referee's

Deed was executed and delivered after sale to Deutsche Bank on March 22, 2010.

Gerda Southwell moved into the subject premises in October, 2008, while the

foreclosure was pending. She was not a party to the foreclosure proceeding and was not

specifically named in the instant proceeding's notice to quit or petition and notice of petition.

Petitioner alleges respondent was served on or about June 1, 2010 by conspicuous place

service with a notice to quit dated April 30, 2010. The notice gave termination dates of

either June 14, 2010 or September 4, 2010, depending on whether respondent is a "bona

fide" tenant based on the Protecting Tenant at Foreclosure Act. The instant holdover was

commenced by service of the petition and notice of petition on or around July 23, 2010, andwas first scheduled on the court's calendar on August 13, 2010. Gerda Southwell appeared

pro-se on August 13, 2010 and consented to being substituted as a respondent in place of

"Jane Doe." The proceeding was adjourned to September 8, 2010 for Ms. Southwell to

obtain counsel, and further adjourned to September 29, 2010, October 6, 2010, October 21,

2010, November 9, 2010, and November 30, 2010. The Legal Aid Society filed a notice of

appearance on behalf of Gerda Southwell on November 30, 2010 and the proceeding was

then adjourned to January 14, 2010 for motion practice.

Respondent moves to dismiss on the basis of petitioner's failure to name Gerda

Southwell as a necessary party. 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[*3]who might be inequitably affected by a judgment in the action shall be

made plaintiffs or defendants." Triborough Bridge and Tunnel Authority v. Wimpfheimer,

163 Misc 2d 412; 620 N.Y.S. 2d 914 (Civ. Ct. New York Co., 1994). The court finds that

Ms. Southwell is a necessary party as a continuous resident of the premises since October

2008.



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Petitioner asserts that Gerda Southwell was properly named as "Jane Doe" on the

predicate notice and the petition and notice of petition, as the caption in a proceeding may be

readily amended to reflect the identity of an unknown party. Respondent's counsel moves for

dismissal arguing that petitioner may not use the designation "John Doe" or "Jane Doe"

where the unknown party was known to the petitioner prior to the commencement of the

action, or if a diligent attempt by the petitioner to learn the identity of the unknown person

would have revealed the party's identity. CPLR 1024 states that "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 accordingly".

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

ssociation 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 theproceeding is commenced." Varveris v. Infante, N.Y.L.J. Sept. 15, 1993, p. 25, col. 3 (Civ.

Ct. Queens Co.), citingABKCO Industries v. Lennon, 52 AD2d 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.).

In the instant case, there has been no evidence or testimony presented to suggest that

Petitioner had actual knowledge of the presence or identity of Gerda Southwell. However,

petitioner has failed to demonstrate that any effort, let alone a diligent effort, was made to

determine the identity(ies) of the occupant(s) of the premises. "It is clearly implicit in CPLR

1024 that the unusual authority it sanctions should not be availed of in the absence of a

genuine effort to learn the true name of the party." Chavez v. Nevell Mgmt. Co., Inc., 69

Misc 2d 718; 330 N.Y.S. 2d 890 (Civ. Ct. New York Co., 1972); 2 Weinstein-Korn-Miller,

New York Civ. Prac., par. 1024.04. "Petitioner by means of the CPLR is duty bound not to

proceed with or to permit an eviction proceeding to go forward in the name of a John Doe or

Jane Doe' when they could with diligence find out the true name, or actually have

knowledge of the true name or names." Green Point Savings Bank v. John and Jane Doe,

N.Y.L.J. July 12, 1995, p. 31, col. 2; See Teachers College v. Walterding, 351 N.Y.S. 2d

587 (App. Term, 1st Dept, 1974) and Chavez v. Nevell Mgmt. Co., supra. 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 [*4]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.,supra; 2 Weinstein-Korn-Miller, NY Civ. Prac., par. 1024.04.



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Petitioner has presented no evidence or testimony to demonstrate a diligent effort was

made to ascertain the identity(ies) of the occupant(s). This is a two-family dwelling where

the respondent has resided consistently since October 2008. In a two-family home the

identity of any occupants' could have been ascertained with a minimal amount of effort.

Petitioner could have knocked on Ms. Southwell's door, asked the prior owners if anyone

else resided in the building, or checked the names on the mailboxes. Petitioner produced no

evidence that any effort was made at all. "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. BoweryResidents Committee Inc., 2006 NY Misc. LEXIS 4025; 235 N.Y.L.J. 60 (Civ. Ct. Bronx

Co., 2006), citing Triborough Bridge and Tunnel Auth. v. Wimpfheimer, 165 Misc 2d 584;

633 N.Y.S. 2d 695 (App. Term, 1st Dept. 1995); First Fed. Savings and Loan Assoc. of

Rochester v. Souto, 158 Misc 2d 219; 601 N.Y.S. 2d 43 (Civ. Ct. New York Co., 1993).

Accordingly, respondent's motion is granted and the petition is dismissed without prejudice.

As the proceeding is dismissed on the basis of failure to name a necessary party, the court

need not address the additional grounds raised for dismissal.

This is the decision and order of the Court.

Dated: Bronx, New York

April 22, 2011

___________________________

STEVEN WEISSMAN, JHC

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