This decision has been referenced in a table in the New York Supplement.
ANDREW LEHRER, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of petitioner's motion for an order dismissing or striking respondent Sharon Thornhill' succession rights defense:
| Petitioner's notice of motion, affirmation and exhibits || 1 |
| Respondent Sharon Thornhill's affirmation in opposition || 2 |
| Petitioner's reply affirmation and exhibits || 3 |
Petitioner 1872 Monroe Avenue Associates commenced this holdover proceeding against respondent Myasia Cogle and respondent-undertenants-occupants " John Doe" and " Jane Doe" in January 2013. The petition, as amplified by the predicate notice to cure dated November 23, 2012 and notice of termination dated December 18, 2012, alleges, among other things, that the subject apartment is Rent Stabilized; that Ms. Cogle is the tenant of the apartment; and that she has violated a substantial obligation of her tenancy by subletting or assigning the apartment to " John Doe" and/or " Jane Doe" without petitioner's written permission, and by failing to cure that breach of her lease by December 10, 2012, the deadline set forth in the notice to cure.
After several missing several court dates, Myasia Cogle, who is not represented by counsel, appeared on May 29, 2013 but did not file an answer. Accordingly, her answer shall be deemed to be a general denial.
On April 24, 2013, Sharon Thornhill, who is represented by counsel, was substituted as a respondent in place of Jane Doe. Although she did not file a written answer, she asserted a defense of succession rights to the apartment on that date.
Because Ms. Thornhill represented that Donovan Jackson Thornhill, who is 16 years old, also resides in the apartment and has a succession rights defense, on May 8, 2013 the Hon. Jaya Madhavan appointed a guardian ad litem for him. Although his guardian has not filed a written answer, the Court will allow her to assert a succession rights defense on his behalf. In addition, the Court orders that he (Mr. Thornhill) be substituted as a respondent in place of " John Doe."
By notice of motion dated May 5, 2013, petitioner moves for an order pursuant to Section 3211(b) of the CPLR dismissing or striking Sharon Thornhill's succession rights defense, claiming that such defense is barred by res judicata. Ms. Thornhill opposes the motion and has submitted papers in opposition thereto. Neither Myasia Cogle nor Donovan Jackson Thornhill has expressed a position on petitioner's motion.
The essential facts underlying petitioner's motion are not in dispute. In November 2009 petitioner commenced a licensee holdover proceeding against " John Doe" and " Jane Doe," alleging that their license to occupy the subject apartment terminated upon the death of the tenant of record, Eleanor Jackson, on or about August 15, 2009. Subsequently, Sharon Thornhill, Donovan Jackson, and Myasia Cogle were substituted as respondents in place of " John Doe" and " Jane Doe."
Although no answers are contained in the court file, a motion for discovery filed by petitioner indicates that discovery was needed to explore " the respondents' claims to succession rights."
On April 9, 2010, the parties signed a stipulation settling the licensee proceeding. In that stipulation, petitioner agreed to provide Myasia Cogle with a new Rent Stabilized vacancy lease and Ms. Cogle agreed to sign the lease and pay petitioner $4,519.66 for past due use and occupancy. The stipulation further provided that " [u]pon compliance herein [ sic ] the case will be discontinued as to Kadeem Jackson-Thornhill and Sharon Thornhill" but upon default, petitioner could move for a judgment and warrant. It was signed ...