LLC v. Ophelia Burwell; "John" "Doe"; "Jane" "Doe", Respondent(s) (2026)

NYSCEF Doc No. 1-23, 27-29

The referenced e-filed documents were read on these three motions before the court.

In this holdover proceeding, the caption of the petition names John Doe and Jane Doe. The body of the petition recites that Ophelia Burwell was the tenant of record and that she is deceased. As such there is no dispute that the caption should not reflect the name of Ophelia Burwell, as she is deceased and cannot be named as a party.

The petition alleges that Respondents, John Doe and Jane Doe, are the undertenants, holding over and unknown to Petitioner. As such, Respondents are named pseudonymously.

Respondent John Doe, appearing by the New York Legal Assistance Group (NYLAG) moves by Notice of Motion, Motion Seq. No.1, to dismiss this proceeding because Petitioner improperly resorted to the use of a fictious name pursuant to CPLR 1024 despite actual notice and knowledge of Respondent Zachery Burwell, and that Petitioner failed to follow HUD rules as it did not provide a VAWA rider to the predicate notice. Alternatively, if the motion is denied, Respondent request that the Verified Answer with Counterclaims be deemed served and filed. Respondent also filed a Notice of Cross-Motion to Amend Respondent's Attorney Affirmation. Motion Seq. No. 3. Respondent's motion sequence no.3, seeks to conform the initial motion papers to reflect the correct name of the movant to be Zachery Burwell.

In opposition, Petitioner moves by Notice of Cross-Motion for leave to amend the caption and to substitute Zachery Burwell for John Doe and to deny Respondent's motion to dismiss, Motion Seq. No. 2. Petitioner's argument in support of its request for leave to amend the caption is not supported by an affidavit describing the due diligence exercised to identify the individual by their names and the inability to do so. See, Eastern 1090 Realty v. Joseph, 2026 NY Slip Op 51276(U) [Civ Ct, Kings Co August 12, 2026]; 1759 Monroe Ct. LLC v. Brown, 2024 NY Slip Op 50143(U), 81 Misc 3d 1244(A) [Civ Ct, Bronx Co 2024].

Petitioner correctly states that leave to amend shall be freely granted, however, the fundamental inquiry as to what efforts were undertaken to ascertain the true identities of the parties before restoring to pseudonymous respondents, is not provided. "Courts universally hold that a plaintiff or petitioner must show they made diligent efforts to learn a defendant's or respondent's identity prior to bringing suit." 1759 Monroe Ct. LLC v. Brown, (supra); Bumpus v New York City Tr. Auth., 66 AD3d 26 [2nd Dept. 2009] ("parties are not to resort to the Jane Doe procedure unless they exercise due diligence, prior to the running of the statute of limitations, to identify the defendant by name and, despite such efforts, are unable to do so" at 29).

CPLR Rule 3025(b) governing leave to amend pleadings, does not modify the requirements set forth in CPLR § 1024. Section 1024 permits 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 [their] name and identity as known." There is no claim here that Petitioner was ignorant, in whole or in part, of the name or identity of Zachary Burwell. While leave to amend pleadings is well established to give notice and conform the pleadings to the facts and circumstances before the court, the undisputed documents demonstrate that Zachary Burwell has been listed as part of the household composition since at least 2021. Moreover, Respondent appears to assert a succession claim as a remaining family member, a claim that ordinarily should be processed pursuant to public housing rules and regulations, with an initial interview and fair hearing held before a holdover proceeding is filed in Housing Court.

Accordingly, it is ORDERED that Respondent's motions, seq. no. 1 and no. 3, are granted and the case is dismissed without prejudice, and Petitioner's motion, seq. 2 is denied.

This is the decision/order of the court.

Date: August 23, 2026

Hon. Enedina Pilar Sanchez

Housing Court Judge

Enedina Pilar Sanchez, J.