905 Mother Gaston Corp. v. More, 2022-50321

CourtNew York Civil Court
Writing for the CourtDAVID A. HARRIS, J.H.C.
Parties905 Mother Gaston Corp., Petitioner, v. Edmond More a/k/a ADMON MORE, JOHN DOE and JANE DOE, Respondents. 905 MOTHER GASTON CORP., Petitioner, v. RALPH SPEARS, JOHN DOE and JANE DOE, Respondents. 905 MOTHER GASTON CORP., Petitioner, v. MELINDA GALARZA, JOHN DOE and JANE DOE, Respondents. 905 MOTHER GASTON CORP., Petitioner, v. MARIE LUBRUN, JOHN DOE and JANE DOE Respondents.
Decision Date20 April 2022
Docket NumberIndex 309566/21,2022-50321

905 Mother Gaston Corp., Petitioner,
v.

Edmond More a/k/a ADMON MORE, JOHN DOE and JANE DOE, Respondents.

905 MOTHER GASTON CORP., Petitioner,
v.

RALPH SPEARS, JOHN DOE and JANE DOE, Respondents.

905 MOTHER GASTON CORP., Petitioner,
v.

MELINDA GALARZA, JOHN DOE and JANE DOE, Respondents.

905 MOTHER GASTON CORP., Petitioner,
v.

MARIE LUBRUN, JOHN DOE and JANE DOE Respondents.

No. 2022-50321

Index No. 309566/21

Civil Court of the City of New York, Kings County

April 20, 2022


Unpublished Opinion

Petitioner's attorneys: Shiryak, Bowman, Anderson, Gill & Kadochnikov LLP

Respondent's attorneys: Zabokritsky Law Group, P.C.

DAVID A. HARRIS, J.H.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent's motion to dismiss and for sanctions, listed by NYSCEF number: 309566/21, 309567/21 and 309568/21: 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 309569/21: 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22

Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:

On the court's own motion, the motions captioned above, pending in four proceedings, are consolidated for purposes of disposition.

After the expiration on September 30, 2021 of four functionally identical documents entitled Ninety (90) Day Notice to Occupant on Termination of Occupancy and Intention to Recover Possession (Notices), petitioner commenced these summary proceedings seeking to recover possession of apartments 1F (309566/21), 1R (309567/21), 2F (309568/21) and 2R (309569/21) in the building located at 905 Mother Gaston Boulevard in Brooklyn (Building). The proceedings seek possession, alleging that respondents remain in possession after the termination of their month to month tenancies.

While no answer has been filed in any of the proceedings, a notice of appearance has been filed by which counsel for respondents purports to appear in all four proceedings. Respondents have also, through their counsel, filed, in each proceeding, the instant functionally identical motion to dismiss. The motion seeks dismissal pursuant to CPLR 3211(a)(5), 3211(a)(7) and CPLR 3211(a)(10), as well as the imposition of a sanction of costs and attorney's fees on petitioner pursuant to 22 NYCRR § 130-1.1.

The instant litigation is neither the first litigation between these parties pending in Housing Court, nor the only litigation now pending. Four prior holdover proceedings were commenced under index numbers 54575/20, 54576/20, 54577/20, and 54578/20 (Prior Proceedings), and a trial held. That trial resulted in a decision and order dated May 26, 2016 - an apparent scrivener's error as the trial took place in 2021 (309566/21, 309567/21 and 309568/21 - NYSCEF No. 8; 309566/21 - NYSCEF No. 9) (Prior Decision). The Prior Decision resulted in the dismissal of the Prior Proceedings. The proceedings against Spears, Galarza, and Lubrun were dismissed when the court found that they were tenants rather than licensees. The proceeding against More was dismissed because More was deceased, and the proceeding was not brought naming an occupant or a representative of the estate. There also remains pending in Supreme Court an as-yet undecided suit to quiet title brought by 905 Mother Gaston LLC.

The three grounds respondents assert for dismissal are res judicata or collateral estoppel, the failure to state a cause of action, and the failure to name a necessary party.

The "absence of a person who should be a party" (CPLR 3211 [a] [10]) can constitute a basis for the dismissal of a proceeding. Here, respondents assert that 905 Mother Gaston LLC is such an entity and that the "LLC who has ownership of the Mother Gaston property and collect[s] money from the tenants clearly has interest in these holdover proceedings and is a necessary party." Joinder, rather than dismissal, exists as a remedy and "[p]ersons who ought to be parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants" (CPLR 1001 [a]). Here, the entity that respondents assert is a necessary party is 905 Mother Gaston LLC, the plaintiff in a pending suit to quiet title.

Of course, such an action may be won or lost. As presently situated, 905 Mother Gaston LLC does not have title to the Building. At trial any respondent may establish that there is no landlord-tenant relationship with petitioner, or that there is a landlord tenant relationship with 905 Mother Gaston LLC. That entity need not be a party for respondents to offer such evidence, and respondents may, of course, call witnesses to testify as to...

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