2264 G LLC v Issac Deli & Grocery Corp.
Annotate this CaseDecided on October 5, 2017
Civil Court of the City of New York, Bronx County
2264 G LLC as Successor in Interest to Grand Ave. Realty Assoc., LLC, Petitioner,
against
Issac Deli & Grocery Corp. C/O WAIL M. ALSHABBI 2264 GRAND AVENUE STORE No.1 BRONX, NY 10453, Respondent-Tenant, XYZ CORP, JOHN DOE, & JANE DOE, Respondent-Undertenants.
LT-901376-16
Appearances of Counsel:
Plaintiff- Heiberger & Associates, PC, by: Lawrence McCourt, Esq.
Defendants- Law Office of Bart Mayol, by: Bart Mayol, Esq.
Armando Montano, J.
HON. ARMANDO MONTANO:
After conducting a traverse hearing, the Court's findings and determinations are as follows:
On or about September 12, 2016, Petitioner 2264 G LLC, as successor in interest to Grand Ave. Realty Assoc., LLC, (hereinafter "petitioner"), commenced this summary holdover proceeding against Respondent Isaac Deli Grocery Corp., by Wail M. Alshabbi, (hereinafter "respondent Alshabbi") seeking possession of the subject premises on the grounds that the lease between the parties expired. Respondent Alshabbi defaulted in answering. However, on or about November 4, 2016, Abdo Ali Fara (hereinafter "Mr. Fara") appeared in this action claiming to be in possession of the subject premises. In his answer, Mr. Fara argues that he was not properly served with the Notice of Termination, Notice of Petition, and Petition. Thereafter, petitioner filed a motion seeking, in relevant part, an Order from this Court amending the caption to replace "John Doe" with Abdo Ali Fara. Said motion was denied without prejudice on April 3, 2017, by the Honorable Brenda Rivera on the basis that the motion did not attach a proposed amended complaint.
On or about June 14, 2017, petitioner filed a motion to restore the proceeding to the Court's calendar for settlement or trial. In a Stipulation of Settlement dated June 27, 2017, the parties resolved said motion by agreeing to place the proceeding on this Court's calendar for August 2, 2017. On August 2, 2017, the matter was adjourned to August 16, 2017 in order for the trial judge to determine whether a traverse hearing was appropriate. On August 16, 2017, this Court heard the oral arguments of the attorneys with regard to whether a traverse hearing was appropriate. In essence, petitioner's argument was that a traverse hearing should not be granted because the parties entered into the Stipulation of Settlement dated June 27, 2017, wherein, as stated above, Mr. Fara agreed to place this action in this Court's trial calendar. Thus, petitioner argued that Mr. Fara waived any jurisdictional defect given that his attorney did not specifically make a request for a traverse hearing or preserved said right in the Stipulation of Settlement. Conversely, Mr. Fara contends that by entering into the Stipulation, he did not waive his right to contest jurisdiction and that his right to do so is preserved in his Answer, as he raised an objection to personal jurisdiction as an affirmative defense.
This Court reserved decision on the issue as to whether a traverse hearing was required under the circumstances. However, in order to expedite the proceeding and given that petitioner's process server was present in court, this Court conducted the traverse hearing, so that in the event that this Court ruled that a traverse hearing was necessary, this Court could simultaneously make a ruling as to whether service was properly made. For the following reasons, this Court determines that a traverse hearing was indeed necessary and appropriate.
Discussion
First, this Court notes that at the beginning of the traverse hearing, a question arose as to whether Mr. Fara was a named respondent to the instant action. Petitioner's attorney indicated to this Court that "[t]here's a decision of the Court that makes [Mr. Fara] a respondent with relation to John Doe... John Doe was replaced with Mr. Fara". When this Court asked Mr. Fara's attorney whether the statement made by petitioner's attorney was correct, he indicated "yes, your Honor". Nonetheless, after conducting a review of this Court's file, the Court's file is devoid of any Orders to the effect of replacing John Doe with Mr. Fara. As indicated above, Judge Rivera denied petitioner's motion seeking to amend the caption "with leave to renew upon the presentation of the proper documents." However, there is no indication in the Court's file that petitioner indeed moved to renew or that this Court issued a subsequent Order amending the caption. In any event, upon Mr. Fara's own admission in his Answer and during oral argument on August 16, 2017, that he is indeed in possession of the subject premises, which petitioner also seems to acknowledge as evidenced when he moved this Court for an Order amending the caption, this Court hereby deems Mr. Fara as a proper party to this action and hereby replaces "John Doe" with Mr. Fara. Accordingly, hereinafter, this Court will reference Mr. Fara as "respondent Fara".
Furthermore, this Court disagrees with petitioner's position that a traverse hearing should not be conducted on the ground that respondent Fara waived any jurisdictional defect. As stated in Calloway v Natl. Services Indus., Inc., 93 AD2d 734, 734—35 [1st Dept 1983], affd, 60 NY2d 906 [1983], "CPLR 320(b) and CPLR 3211(e) permit a defendant who objects to jurisdiction the right to preserve such objection by asserting an affirmative defense to that effect in the answer. 'The practical effect of asserting the defense by answer rather than by motion is to put off [*2]resolution of the objection until the trial' (citing to Colbert v. International Security Bureau, Inc., 79 AD2d 448, 463, 437 N.Y.S.2d 360). Participation in the defense of the action does not waive a defense of lack of personal jurisdiction contained in the answer (Chemical Bank v. Cakepan, Inc., 72 AD2d 515, 420 N.Y.S.2d 892)." In the instant action, it is undisputed that respondent Fara raised an objection to jurisdiction in his Answer. Thus, pursuant to CPLR §3211(e), respondent Fara preserved his right to a traverse hearing and did not waive said right by stipulating to restoring the proceeding to this Court's calendar for settlement or trial. Absent an unequivocal, knowingly, and intelligently waiver by respondent Fara, this Court determines that respondent Fara is within his rights to contest jurisdiction.
Traverse Hearing
After oral argument on August 16, 2017, this Court finds that plaintiff established a prima facie showing of proper service through its process server's properly executed affidavit of service. (Hinds v. 2461 Realty Corp., 169 AD2d 629 [1st Dept. 1991]). However, respondent Fara successfully challenged the validity of plaintiff's service, thereby warranting a traverse hearing. (Wells Fargo Bank N.A. v. Mondesir, 13 Misc 3d 1210(A) [NY Sup 2006]). Mr. Fara argues that petitioner had actual knowledge of the identity of respondent Fara and knew that he was in possession of the subject premises at the time that petitioner commenced the instant action, and yet petitioner improperly designated respondent Fara as "John Doe". In support of his allegation, Mr. Fara presented a copy of a lease agreement entered into between himself and petitioner's predecessor on June 16, 2011, with an addendum that included a lease renewal provision. Mr. Fara further submitted a signed request by respondent Fara requesting that petitioner's predecessor change the name of the lease to the name of respondent Alshabbi. Mr. Fara alleges that the change was for the sole purpose of obtaining a liquor license, which petitioner was aware of. However, petitioner contends that it had no knowledge of respondent Fara's occupancy at the subject premises when it commenced the instant action on September 12, 2016.
Despite petitioner's contentions, this Court determines that petitioner did indeed have knowledge of respondent Fara's occupancy prior to the commencement of this action. This is evidenced by a Tenant Estoppel Certificate issued by petitioner to respondent Isaac Deli & Grocery on February 8, 2016, seven months prior to the commencement of this action. The Tenant Estoppel Certificate is signed by respondent Fara. Thus, receipt of the signed certificate by respondent Fara on behalf of Isaac Deli & Grocery, coupled with the prior lease executed by petitioner's predecessor and respondent Fara, this Court finds that petitioner had actual knowledge of the identity and name of respondent Fara, as well as knowledge of his occupancy in the subject premises.
Upon the completion of the traverse hearing and all the evidence presented, this Court finds that service of process herein was improper. It is undisputed that petitioner served the Notice of Termination, Notice of Petition, and Petition to "Issac Deli & Grocery Corp c/o Wail M. Alshabbi, XYZ Corp, John Doe and Jane Doe." Although CPLR §1024 permits the use of a fictitious name (to wit: John Doe) to commence an action, same is only proper "where the adversary is ignorant of the name and identity of proper parties". (Triborough Bridge and Tunnel Auth. v Wimpfheimer, 165 Misc 2d 584, 586 [App Term 1995]); see CPLR §1024). Thus, in the [*3]instant action, utilizing "John Doe" was improper as petitioner had knowledge of the undertenant's identity and name (to wit: respondent Fara) prior to the commencement of this action. Accordingly, dismissal without prejudice is warranted as against respondent Fara. However, such dismissal is not fatal to the proceeding as it relates to respondent Alshabbi. (Id; see § 38:30. Subtenant, 2 NY Landlord & Tenant Incl. Summary Proc. § 38:30 [5th ed.]).
For the foregoing reasons, traverse is sustained and this action is dismissed without prejudice only as against respondent Fara.
Respondent Fara is hereby ordered to serve a copy of this Decision and Order, with notice of entry, upon petitioner within twenty (20) days of this Order.
This constitutes the decision and order of this Court.
Dated: October 5, 2017
Armando Montano, J.C.C.
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