1234 Broadway LLC v Hsien Hua Ying

[*1] 1234 Broadway LLC v Hsien Hua Ying 2016 NY Slip Op 50190(U) Decided on February 22, 2016 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 22, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, J.
571164/15

1234 Broadway LLC, Petitioner-Landlord-Appellant,

against

Hsien Hua Ying, Respondent-Tenant, - and - "John Doe," Respondent-Undertenant-Respondent, - and - "Jane Doe," Respondent-Undertenant.

Petitioner-landlord, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Anne Katz, J.), dated March 9, 2015, which denied its motion for a default judgment as against tenant Hsien Hua Ying and granted respondent-undertenant's cross motion to dismiss the petition as against tenant in a holdover summary proceeding.

Per Curiam.

Order (Anne Katz, J.), dated March 9, 2015, insofar appealed from, reversed, with $10 costs, the cross motion denied and the petition reinstated as against tenant Hsien Hua Ying, and landlord's motion for a default judgment against said tenant granted.

This illegal sublet holdover proceeding was dismissed on the ground that the alleged subtenant, whose name and identity were known to landlord, was improperly designated as "John Doe" (see CPLR 1024). However, while dismissal is warranted as against the subtenant, the petition should not have been dismissed against the named tenant, Hsien Hua Ying, who has defaulted in the proceeding (see Triborough Bridge & Tunnel Auth. v Wimpfheimer, 165 Misc 2d 584 [App Term, 1st Dept 1995]). The subtenant, while a "proper" party to the instant holdover proceeding, is not a "necessary" party whose presence is indispensable to the according of complete relief as between landlord and tenant (see Wimpfheimer, 165 Misc 2d at 586).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur

 
Decision Date: February 22, 2016