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Rr Reo Ii, LLC v. Theresa Omeje

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


October 11, 2011

RR REO II, LLC,
RESPONDENT,
v.
THERESA OMEJE, TENANT, "JANE DOE,"
UNDERTENANT,
-AND-
PATRICK OMEJE SUED HEREIN AS "JOHN DOE," APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Marcia J. Sikowitz, J.), entered June 22, 2010.

RR Reo II, LLC v Omeje

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2011

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

The order denied a motion by Patrick Omeje sued herein as "John Doe" 1) to be restored to possession, 2) to vacate so much of a final judgment entered May 18, 2010 (Oymin Chin, J.) as awarded landlord possession as against "John Doe," 3) to vacate the warrant executed against Patrick Omeje and 4) to dismiss so much of the petition as is against "John Doe," in a holdover summary proceeding.

ORDERED that the order is reversed, without costs, the branches of the motion by Patrick Omeje sued herein as "John Doe" seeking to vacate so much of the final judgment as was entered against "John Doe," to vacate the warrant of eviction, and to dismiss so much of the petition as is against "John Doe" are granted, and the branch of the motion by Patrick Omeje sued herein as "John Doe" seeking to be restored to possession is remitted to the Civil Court for a determination de novo following a hearing in accordance with the decision herein.

Landlord commenced this holdover summary proceeding against Theresa Omeje, tenant, and "John Doe" and "Jane Doe," undertenants, alleged to occupy apartment 3-R, one of six apartments in a formerly commercial building which had been substantially rehabilitated and converted to residential use before landlord had acquired title. Only Theresa Omeje, who acknowledged occupying the basement apartment, was personally served, at the basement premises. She stipulated to an award of possession of apartment 3-R to landlord, and a final judgment was entered on May 18, 2010 as against her. The stipulation contained Theresa Omeje's representation that no one resided in the subject premises. Following an inquest, a second final judgment was entered on the same day against the "John Doe" and "Jane Doe" undertenants. After being evicted, Patrick Omeje sued herein as "John Doe" (appellant) moved to be restored to possession, to vacate the warrant executed against him and so much of the final judgment as awarded landlord possession against him, and to dismiss so much of the petition as is against "John Doe," asserting that he had occupied the subject premises with his daughter for three years pursuant to a life estate which had been granted to him by the former owner; that Theresa Omeje did not live in the apartment and had no right to surrender it; that landlord was aware of his residency in the apartment because it had installed surveillance cameras in the building; and that landlord had failed to exercise due diligence to ascertain his identity before resorting to the "John Doe" procedure set forth in CPLR 1024. In support of his motion, appellant submitted, among other documents, a copy of his driver's license, issued June 29, 2009, which listed the subject apartment as his address, a Cablevision bill dated April 21, 2010 for service to him at the premises, a stipulation of settlement from a different proceeding in which Theresa Omeje acknowledged that she was in sole possession of the basement apartment, and a copy of a September 12, 2007 "agreement" purporting to make the deed to the prior owner subject to a life estate in appellant. Landlord failed to submit opposition to appellant's motion. The Civil Court denied the motion on the ground that the document alleged to grant Mr. Omeje a life estate had not been recorded and because the named tenant had stipulated to the fact that no one occupied the premises.

"In order to employ the procedural mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party . . . " (Comice v Justin's Restaurant, 78 AD3d 641, 642 [2010]). "A second requirement unique to CPLR 1024 is that the [John] Doe' party be described in such form as will fairly apprise the party that [he] is the intended defendant. An insufficient description subjects the [John] Doe' complaint to dismissal for being jurisdictionally defective" (Bumpus v New York City Tr. Auth., 66 AD3d 26, 30 [2009] [citations omitted]). Since appellant made a prima facie showing that service was defective and landlord failed to respond to appellant's claim of defective service, appellant's application to vacate the warrant and so much of the default final judgment as awarded possession to landlord against "John Doe," and to dismiss so much of the petition as is against "John Doe" should have been granted (see George Tut & Co. v Doe, 20 Misc 3d 815 [2008]; Capital Resources Corp. v Doe, 154 Misc 2d 864 [1992]).

The branch of appellant's motion seeking to be restored to possession is remitted to the Civil Court for a determination de novo following a hearing. Appellant raised a triable issue based on his claims that he had received a life estate from the former owner of the premises and that he was in possession at the time landlord took title. Appellant's interest, if one be established, would not necessarily be extinguished because the agreement was unrecorded. "[A]n unrecorded conveyance is void only as against a subsequent good faith purchaser for value," and actual possession at the time of the purchase is notice to the whole world of any rights that the person in possession can establish (1426 46 St., LLC v Klein, 60 AD3d 740, 743 [2009]; see 6820 Ridge Realty v Goldman, 263 AD2d 22, 26 [1999]; Development Strategies Co., LLC v Astoria Equities, Inc., 30 Misc 3d 136[A], 2011 NY Slip Op 50183[U] [App Term, 9th & 10th Jud Dists 2011]). Consequently, appellant should be afforded an opportunity to establish his claim at a hearing.

Accordingly, the order is reversed, the branches of the motion by Patrick Omeje sued herein as "John Doe" seeking to vacate so much of the final judgment as was entered against "John Doe," to vacate the warrant of eviction, and to dismiss so much of the petition as is against "John Doe" are granted, and the branch of the motion by Patrick Omeje sued herein as "John Doe" seeking to be restored to possession is remitted to the Civil Court for a determination de novo following a hearing.

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: October 11, 2011

20111011

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