WELLS FARGO BANK, N.A., Petitioner, v. Jeffrey BELLAMY, Junior Bellamy, Tamira Lewis “John Doe and Jane Doe, Respondents-Occupants
Respondents, Sherley Carmichael and Kaseem Carmichael (hereinafter “respondents”) move herein or an Order: 1) Granting the respondents’ motion to dismiss this proceeding pursuant to CPLR § 1024 based on a misuse of the pseudonym “Jane Doe” for Sherley Carmichael and “John Doe” for Kaseem Carmichael; 2) Deeming the annexed proposed answer served and filed nunc pro tunc and; 3) Granting such other and further relief as this Court may deem just and proper given the facts and circumstances set forth herein. The Legal Aid Society represents Nekeria Rosenberg, the daughter of Sherley and Kaseem Carmichael who are represented by Queens Legal Services. Ms. Rosenberg did not make a similar motion. Petitioner in opposition argues that the motion should be denied as it was filed under an incorrect index number and therefore the wrong premises and the respondents have failed to establish that the petitioner had actual knowledge of their occupancy or any information which would have allowed the petitioner to identify them.
This is a post-foreclosure holdover proceeding. Petitioner commenced the proceeding by serving and filing the notice of petition and petition on or about January 2, 2020. The case first appeared on the calendar on January 15, 2020. Sherley Carmichael appeared with an attorney and the matter was adjourned to February 26, 2020 and then to March 30, 2020. Due to the Covid-19 pandemic regular court operations were suspended for some time. Sherley Carmichael eventually filed a Hardship Declaration sometime around July 13,2021 which stayed this proceeding until January 15, 2022. The case was restored to the Part D calendar on April 20, 2022 and adjourned several times for motion practice. The Court heard oral arguments and reserved decision on July 7, 2022.
The respondents argue that they have been residing at the premises for over ten years. In support of the motion, the respondents offer an affidavit from Sherley Carmichael in which she alleges that she has resided in the premises for ten to eleven years. She had a lease for the premises with the former owner, respondent Jeffery Bellamy. She knew that there was a foreclosure proceeding concerning the property from the mail she saw coming to the premises. When the former owner vacated the premises, she put the utility bills in her name, made repairs to and maintained the property.
The respondents argue that Petitioner had an obligation to make a “genuine effort” to learn their true names before resorting to using a pseudonym “John Doe” and “Jane Doe”. They additionally argue that the petition should be dismissed where the landlord fails to demonstrate that it made diligent efforts to learn the true names of the occupants. In her affidavit in support of the motion, Sherley Carmichael, alleges that she resided in the premises for over ten years, during the time of the foreclosure she was available when inspectors visited the property, and they could have easily inquired of her name. Furthermore, the utilities were transferred to Sherley Carmichael's name and packages and mail came to the premises in both Sherley and Kaseem Carmichael's name.
The respondents additionally request leave to serve and file the proposed answer annexed to the motion on the basis that Ms. Carmichael appeared in court without an attorney and was unaware that she needed to file an answer and the petitioner would not be prejudiced by allowing the respondents to interpose an answer at this time.
The petitioner opposes the motion and argues that it should be denied as the motion was filed in the wrong proceeding. The index number under which the motion was filed is 72238/19. In that case the Petitioner seeks to recover the premises located at 29-29 Far Rockaway Blvd., Unit 1, Far Rockaway, NY 1169. However, Sherley Carmichael's affidavit states that she resides on the second floor. However, the proceeding brought to recover possession of the second floor where Ms. Carmichael claims she resides bears index number 72239/19.
Petitioner argues that the respondents failed to establish that Petitioner had actual knowledge of their occupancy or any information that would allow Petitioner to know the identity of the respondents. Petitioner additionally argues that in all the cases cited by the respondents in support of their position, the petitioner had actual knowledge of the respondents’ identity but resorted to using a pseudonym. However, in this proceeding the respondents have failed to demonstrate that the petitioner had any reason to know their identity. Petitioner further argues that the respondents have failed to provide any documentation to support their claims that they occupied the premises for over ten years and even if Ms. Carmichael put the utilities in her name, that information is not a matter of public record therefore Petitioner would not be able to ascertain their names by searching the records of the utility company. Furthermore, there is no prejudice to the respondents by using a pseudonym as Ms. Carmichael appeared in court and does not dispute that service was properly effectuated upon her co-occupant, Tamira Lewis. The Petitioner does not specifically oppose the branch of the motion which seeks leave to interpose an answer nunc pro tunc.
In their reply the respondents argue that due to a scrivener's error their motion was brought under the wrong index number and the burden is on the petitioner to demonstrate that it made diligent efforts to ascertain the respondents’ names and not on the respondents to show that they resided in the premises prior to the commencement of this action.
As petitioner had two cases with similar index numbers in the same part for the same property, Index No 72238/19 for the first floor and Index No.: 72239/19 for the second floor, the Court will overlook the respondents’ error in bringing this motion under the wrong index number and address the merits of the motion.
CPLR § 1024 provides:
A party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly. McKinney's Cons. Laws of New York CPLR § 1024.
This provision has been interpreted to provide that a party must use diligent efforts to learn a party's identity before resorting to using a pseudonym. “A diligent effort to learn the party's name is a condition precedent to the use of CPLR § 1024, which should therefore be turned to only as a last resort.” Netherland Properties LLC v. Karalesis, 63 Misc 3d 1235(A), (Civ. Ct. NY Co. 2019) citing George Tut & Company v. Jane Doe, 20 Misc 3d 815 (Civ. Ct. Kings Co., 2008). The use of a fictious name is not authorized where Petitioner fails to demonstrate that diligent efforts were made to learn a party's name and the petition will be deemed “fatally defective as to that party.” Pinnacle Bronx East v. Bowery Resident's Committee Inc. 2006 NY Misc. LEXIS4025; 235 N.Y.S. 60 (Civ. Ct. Bronx Co., 2006).
This is a post-foreclosure holdover proceeding therefore the petitioner would not necessarily know the names of the occupants. However, the petitioner in opposing the motion failed to provide an affidavit from anyone with personal knowledge of the facts to address what, if any, efforts were made by the petitioner to learn the respondents’ identity. Petitioner does not even say if any efforts were made. Instead, Petitioner focuses on Respondents’ lack of proof that they resided in the premises prior to the commencement of the proceeding.
In Chavez v. Nevell Mgmt Co., 69 Misc 2d 718, (Civ. Ct. NY Co., 1972), the court found that neither the petitioner nor his attorney had made a “genuine effort” to learn the true name of the tenant and the “record contains not the slightest intimation that such effort was made either by the landlord or the defendant, or that the defendant made any inquires whatever to ascertain what his client had done to learn the tenant's name.” Id. at 720.
Given that the petitioner has failed to demonstrate that it made any efforts whatsoever to learn the respondents’ identities, Petitioner is not permitted use a fictious name to identify the respondents.
Accordingly, the proceeding is hereby dismissed and the branch of the motion seeking leave to interpose an answer nuc pro tunc is denied as moot.
Respondents shall serve a copy of this order with notice of entry upon the petitioner within ten (10) days.
This constitutes the decision and order of the Court.
Maria Ressos, J.
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