Giacalone v Tatun

[*1] Giacalone v Tatun 2007 NY Slip Op 51985(U) [17 Misc 3d 130(A)] Decided on September 4, 2007 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 4, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and MOLIA, JJ
2006-1786 S C.

Joseph Giacalone, Respondent,

against

Jonathan Tatun and DIANE HEALEY, Appellants.

Appeal from a final judgment of the District Court of Suffolk County, Sixth District (Gigi A. Spelman, J.), entered June 29, 2006. The final judgment awarded landlord possession and the sum of $3,857 and, in effect, dismissed tenant Diane Healey's counterclaims with prejudice, in a nonpayment summary proceeding.

Final judgment modified by striking the award to landlord of possession and the sum of $3,857, and by providing that the petition and the counterclaims are dismissed without prejudice; as so modified, affirmed without costs.

In this nonpayment proceeding, the record reveals that tenant Jonathan Tatun did not reside at the premises at the time the petition and notice of petition were served and that landlord's attorney had written notice, from a prior proceeding, of Tatun's actual place of residence. In these circumstances, landlord's failure to mail a copy of the petition and notice of petition to Tatun's actual place of residence deprived the court of personal jurisdiction over Tatun (see RPAPL 735 [1] [a]). Since Tatun, a co-tenant under the rental agreement, was a necessary party to the proceeding (see Watersview Owners, Inc. v Pacimeo, 13 Misc 3d 130[A], 2006 NY Slip Op 51805[U] [App Term, 2d & 11th Jud Dists]; Lozynskyj v Leland, 9 Misc 3d 133[A], 2005 NY Slip Op 51651[U] [App Term, 1st Dept]; Sonaal Indus. v Santiago, NYLJ, Jan. 19, 2000 [Civ Ct, Kings County]; see also Matter of Greenspan v O'Rourke, 27 NY2d 846 [1970]), and since jurisdiction over him was not obtained, the petition [*2]must be dismissed, without prejudice. In view of the absence of a necessary party, tenant Diane Healey's counterclaims for, inter alia, landlord's alleged breach of the warranty of habitability, are also dismissed without prejudice.

Rudolph, P.J., McCabe and Molia, JJ., concur.
Decision Date: September 04, 2007