Mohammed Mamun Mia, Petitioner, v. JOHN DOE JANE DOE (2026)

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondent's motion to dismiss:

Papers Numbered

Notice of Motion & All Documents Annexed 1 (NYSCEF #18-28)

Affirmation in Opposition & All Documents Annexed 2 (NYSCEF #30-42)

Affirmation in Reply & All Documents Annexed 3 (NYSCEF #43-52)

Upon the foregoing cited papers, the decision and order on respondent's motion is as follows:

PROCEDURAL HISTORY

This licensee holdover proceeding based on 10-day notice to quit was filed in March 2026. In June 2026, respondent Shathi Akter ("respondent") appeared through counsel and made the instant motion to dismiss. Following an adjournment for briefing, this court heard argument upon the motion on August 6, 2026.

DISCUSSION/CONCLUSION

Respondent seeks dismissal on various grounds, namely petitioner's alleged lack of authority to bring this proceeding against respondent, who is alleged to be his religious spouse, failure to name a necessary party, failure to state respondent's interest in the subject premises, defective predicate notice, and retaliation. Petitioner opposes dismissal in all respects.

Respondent's first argument is that petitioner cannot maintain this proceeding against respondent, who claims she is married to petitioner via a religious ceremony after petitioner represented to her that he was divorced from his former wife. Petitioner disputes that respondent is his spouse and maintains that he is still married to his wife, Shamima Haque Shanta. He also annexes what is alleged to be a Bangladeshi marriage certificate formalizing his marriage with Ms. Shanta.

In Heckman v Heckman, 55 Misc 3d 86, 89 [App Term, 2d Dept, 9th & 10th Jud Dists 2017], the Appellate Term, Second Department held that there is no general "familial exception" to the maintenance of summary proceedings brought pursuant to RPAPL § 713(7) (See also Pugliese v Pugliese, 51 Misc 3d 140[A], 2016 NY Slip Op 50614[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). The narrow exception to the maintenance of summary proceedings against family members relates to those relationships where there is a "support" obligation, whether to a spouse or to a minor child (see Rosenstiel v Rosenstiel, 20 AD2d 71, 76-77 [1st Dept 1963]; Heckman, 55 Misc 3d at 88). Respondent argues that such a support obligation exists here because of the religious marriage between petitioner and her, citing to a January 24, 2023 Decision/Order in Hamza v Porras, L&T Index 300530/22 [Queens County Civil Court] for endorsement of this theory. However, in Hamza, Judge Clifton A. Nembhard dismissed the proceeding primarily because there were shared minor children in the household to whom the petitioner owed a support obligation (see NYSCEF Doc. 28). There is no allegation here that the parties have any children in common. Moreover, as petitioner and Ms. Shanta state in their affidavits in opposition that he is still married to Ms. Shanta, there are complex issues of law and fact in dispute as to whether any support obligation that would be owed to respondent exists that preclude dismissal on this issue at this juncture (see Khan v Hasan, 219 AD3d 1420, 1421 [2d Dept 2023] [Neutral principles of law should be applied to marital disputes, even when religious concerns are implicated]).

Next, respondent seeks dismissal on the basis that petitioner's wife and co-owner, Ms. Shanta, is a necessary party who has not been named. A necessary party is one "who ought to be [a party] if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment." (CPLR 1001(a)). There is no per se bar to an individual maintaining a summary proceeding without naming a spouse who is a co-owner (see Martin v Shields, 205 AD 106, 109 [3d Dept 1954] ["The bringing of the proceeding in the name of the respondent without the joinder of his wife was entirely proper. One of two co-owners may maintain a summary proceeding to regain possession in his own name."]; Trama v Trama, 15 Misc 3d 1146[A], 2007 NY Slip Op 51182[U], *2 [Nassau Dist Ct 2007]). To the extent that respondent argues that Ms. Shanta would be "inequitably affected" by a judgment in this proceeding, this appears to be based on surmise. Contrariwise, petitioner annexes an affidavit from Ms. Shanta, wherein she states that she supports petitioner's efforts to proceed against respondent in this proceeding (see Shanta Aff., ¶ 7). Ultimately, upon this CPLR § 3211 motion, the court does not find that respondent has established that Ms. Shanta is a necessary party to this proceeding.

Respondent also seeks dismissal based on an allegedly defective predicate notice. The purported defects are a misdescription of respondent's interest in the subject premises and a misdescription of the subject premises. Respondent is described as a licensee in the 10-day notice to quit but is cursorily described as a tenant, but also a licensee, in the petition. As the petition describes the alleged license in detail and states the date upon which the license expired, the court does not find that the generic description of respondent as a "respondent-tenant" to have created any material misdescription or ambiguity vis-à-vis the predicate notice that would have rendered it unreasonable in view of the attendant circumstances or hindered respondent in the preparation of her defenses (see Oxford Towers Co., LLC v Leites, 41 AD3d 144, 144-145 [1st Dept 2007]; 21st Mtge. Corp. v George, 83 Misc 3d 129[A], 2024 NY Slip Op 50797[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]).

As for the alleged misdescription of the subject premises, respondent highlights an improper zip code, 11472, included in the notice to quit. In her affirmation in support of the motion, respondent states that her zip code is 11373 (see Akter Aff., ¶ 3). In opposition, petitioner asserts that the petition includes the correct address and the predicate notice was served to the proper zip code. However, the affirmations of service for the predicate notice describe service, including mailings, to the address with the 11472 zip code (see NYSCEF Doc. 4). While the inclusion of an incorrect zip code may require a traverse hearing if service of a pleading or predicate notice is challenged (see Avakian v De Los Santos, 183 AD2d 687 [2d Dept 1992]; Brownell v Feingold, 82 AD2d 844 [2d Dept 1981]), here respondent does not make any specific challenge to service of either the predicate notice or pleadings that would warrant a traverse hearing (see Tzifil Realty Corp. v Temammee, 46 Misc 3d 144[A], 2015 NY Slip Op 50196[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] [A "sworn, nonconclusory denial of service" required for a traverse hearing to be granted.]). As the predicate notice and petition both describe the proper street number and Queens neighborhood (Elmhurst), the court does not find that the inclusion of an errant zip code amounts to a misdescription that would render the petition dismissible (cf. U.S. Airways, Inc. v Everything Yogurt Brands, Inc., 18 Misc 3d 136[A], 2008 NY Slip Op 50279[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Rochdale Holding Corp. v Neuendorf, 2004 NY Slip Op 50184[U] [App Term, 1st Dept 2004]).

Finally, respondent seeks dismissal upon her retaliatory eviction defense. Real Property Law (RPL) § 223-b(1)(b) states that "[n]o landlord of premises or units to which this section is applicable shall serve a notice to quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in retaliation for [a] good faith complaint, by or in behalf of the tenant . . . to a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code, or ordinance . . . or any law or regulation which has as its objective the regulation of premises used for dwelling purposes [or rent gouging]." Pursuant to RPL § 223-b(5), a "rebuttable presumption that the landlord is acting in retaliation shall be created if the tenant establishes that the landlord served a notice to quit, or instituted an action or proceeding to recover possession, or attempted to substantially alter the terms of the tenancy, within one year after" a good faith complaint is made in accordance with RPL § 223-b(1)(a). Once the presumption exists, a landlord is required "to establish a non-retaliatory motive for his acts by a preponderance of the evidence." (RPL § 223-b(5)(c)).

Respondent argues that because petitioner commenced this proceeding, as well as two prior holdover proceedings, within a year of her obtaining an order of protection against him, the retaliatory eviction presumption exists. Petitioner disputes this, and claims that he has a viable non-retaliatory claim based on the licensee theory that he pleads herein (see Mia Aff., ¶¶ 13, 15). On a CPLR 3211 motion to dismiss, the petition "must be construed in the light most favorable to [petitioner] and all factual allegations must be accepted as true." (Burrows v 75-25 153rd St., LLC, 44 NY3d 74, 83 [2025]; see also Watts v City of New York, 186 AD3d 1577, 1578 [2d Dept 2020] [On a motion to dismiss for failure to state a cause of action, "the complaint [petition] is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff [petitioner] is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory[.]"]). Here, the court finds that even if a retaliatory presumption exists under RPL § 223-b(5), petitioner has articulated a non-retaliatory motive/claim that is sufficient to defeat dismissal at this juncture. The ultimate determination on the retaliatory eviction defense will be made after a trial on the merits (cf. Lee v Heron, 81 Misc 3d 133[A], 2023 NY Slip Op 51377[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2023]).

For each of these reasons, respondent's motion to dismiss is denied. The proceeding will be restored for all purposes, including trial transfer, on October 23, 2026 at 9:30 AM. The October 5, 2026 control date is stricken/superseded.

This Decision/Order will be filed to NYSCEF.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Dated: September 29, 2026

Queens, New York

HON. CLINTON J. GUTHRIE

J.H.C.

Clinton J. Guthrie, J.