Recitation, as required by CPLR §2219(a), of the papers considered in the review of Petitioner’s motion and Respondent’s cross-motion:Papers NumberedNotice of Motion, Affidavit in Support, Memorandum of Law, Exhibit A 1, 2, 3Notice of Cross-Motion, Affirmation in Opposition, Memorandum of Law, Affidavit in Support, Exhibits A-F 4, 5, 6DECISION/ORDER After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:Petitioner commenced this holdover proceeding seeking to recover possession of the rent-stabilized apartment located at 17 East 17th Street, Apartment 2C, Brooklyn, New York, 11226 alleging respondent Clarence Simms improperly sublet the subject premises pursuant to RSC §2525.6 (f), §2524.3 and RPAPL §226-b. Prior to the commencement of the instant proceeding, Petitioner served a “Ten (10) Day Notice to Cure” dated November 22, 2017 and and a “Seven (7) Day Notice to Terminate Tenancy” dated December 13, 2017. Both the Notice to Cure and the Notice to Terminate list Clarence Simms as “Tenant” and Cheryl Hunter, John Doe, and Jane Doe as “Subtenants.” On the initial appearance date for the proceeding, Lisa Simms appeared for Jane Doe and subsequently retained counsel.Petitioner subsequently filed the instant motion seeking leave pursuant to CPLR §408, §3102, and §3107 to conduct a deposition and an order directing respondents to tender use and occupancy for the pendency of the proceeding. Respondent Lisa Simms opposed petitioner’s motion and filed a cross-motion for dismissal alleging petitioner failed to name her as a known party in violation of CPLR §1024. Respondent Lisa Simms states that she has lived at the subject premises for over ten years, is the daughter of respondent Clarence Simms, has been paying rent with personal checks in her name. She states that she appeared on behalf of her father in a prior nonpayment case under L&T index number 98209-15 where she informed petitioner’s attorney she was living in the apartment. In support, respondent annexes a copy of an answer dated December 15, 2015 and a stipulation dated December 22, 2015 under the L&T index number 98209-15. The answer lists Lisa Simms as respondent’s Clarence Simms’s daughter claiming possession to the subject premises and that Clarence Simms was recovering from surgery. The December 22, 2015 stipulation included a clause “Lisa Simms appears on behalf of respondent Clarence Simms and represents that she resides in the apartment with him. Based on this representation, caption amended to include ‘Lisa Simms’ w[ith]out conferring tenancy rights.” Petitioner is represented by the same attorneys who represented petitioner on the prior 2015 nonpayment case.Pursuant to CPLR §1024: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.While CPLR §1024 authorizes the use of a John Doe or Jane Doe as a respondent when an individuals name is unknown to a petitioner, “…the plaintiff must exercise due diligence to try and ascertain the defendant’s identity…” Practice Commentaries CPLR §1024. See also Capital Resources Corp v. John Doe, 154 Misc 2d 864 (Civ Ct, Kings Cty, 1992) and Chavez v. Nevell Mgmt Co., 69 Misc 2d 718, (Civ Ct, NY Cty, 1972).”…It must be demonstrated that the persons named as unknown actually are 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. Doe 586 N.Y.S.2d 706, 707 (Civ Ct, Kings Cty, 1992)If a petitioner knows a party’s name or fails to demonstrate that diligent efforts were made to learn a party’s name prior to commencement of a case, then use of a fictitious name is not authorized by CPLR §1024 and the petition is rendered fatally defective as to that party. Triborough Bridge and Tunnel Authority v. Wimpfheimer, 165 Misc 3d 584 (App Term, 1st Dept, 1995); see also, Pinnacle Bronx East v. Bowery Residents Committee Inc., NYLJ 3/29/2006, pg 22 (Civ Ct, Bronx Cty).It is undisputed that in a prior nonpayment respondent Lisa Simms filed an answer on behalf of Clarence Simms claiming rights to the subject premises and subsequently signed a stipulation with petitioner’s attorney. Based on the foregoing, respondent’s motion to dismiss is granted for failure to name a known party in violation of CPLR §1024. Petitioner’s motion for discovery is denied as moot.This constitutes the Decision and Order of this Court.SO-ORDEREDDated: May 2, 2019
