New York County Dist. Attorney's Office v. Oquendo

• Decision Date: 26 March 1990
• Citation: 553 N.Y.S.2d 973,147 Misc.2d 125
• Parties: NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE, Petitioner, v. Bill OQUENDO and Rachel Oquendo, et al., Respondents.
• Court: New York City Court

Page 973

553 N.Y.S.2d 973

147 Misc.2d 125

NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE, Petitioner, v. Bill OQUENDO and Rachel Oquendo, et al., Respondents.

Civil Court of City of New York,

New York County,

Trial Term Part II.

March 26, 1990.

District Attorney Robert M. Morgenthau by Daniel K. Healy, New York City, for petitioner.

Koob, Magoolaghan & Salzman by Joan Magoolaghan, New York City, for respondents.

Manuel H. Quintana by Jose Perez, New York City, for respondent New York City Housing Authority.

STUART C. COHEN, Judge.

Petitioner, The New York County District Attorney's Office, commenced this summary proceeding pursuant to R.P.A.P.L. sections 715 and 721(8), seeking to remove respondent-tenants from possession of the subject premises on the ground that the premises are used for an illegal trade or business, to wit, the possession and sale of illegal drugs. (R.P.A.P.L. sec. 711(5)). The petition names Bill Oquendo and Rachel Oquendo as the tenants of the apartment and "John and Jane Doe No. 1 through 10" as subtenants. The petition also names as a respondent, The New York City Housing Authority, the owner of the premises.

The petition was returnable on February 16, 1990, and on that date, respondents appeared pro se. Respondents were given time to obtain counsel and the matter was set down for trial on February 23, 1990. On the trial date, respondents appeared with counsel who served this motion to dismiss the petition. Respondents allege that the proceeding must be dismissed on the grounds that the Court lacks both personal and subject matter jurisdiction, or in the alternative, respondents seek leave to file a written answer with a jury demand and a demand for a verified bill of particulars.

a) Respondents object to personal jurisdiction claiming that petitioner failed to either name or serve known legal residents of the subject premises, specifically, the children and grandchildren of the tenants named in the lease.

The Federal Residential Monthly Lease Agreement to the subject premises was entered into by respondents Bill Oquendo and Rachel Oquendo. These two respondents were named in the petition and they do not deny that they were personally served with process.

The petition also names "John and Jane Doe No. 1 through 10" as subtenants or occupants of the apartment. The affidavit of service states that one copy of the petition and notice of petition were served on these subtenants or occupants. Respondents' attorney submits that these other parties are the children and grandchildren of Bill and Rachel Oquendo, (Magoolaghan aff., p. 2, paras. 2, 3), and that they are necessary parties who should have been named in the petition and served with process. Petitioner alleges that these other persons are undertenants and therefore, they are not necessary parties. (citing Teachers College v. Wolterding, 77 Misc.2d 81, 351 N.Y.S.2d 587 [App.Term, 1st Dep't].

The affidavits submitted by respondents Nelson, Alexis, and Ramon Oquendo allege that they are the children of Bill and Rachel Oquendo. These affidavits further allege that "Three (3) generations of our family live at our home at 100 Pitt Street, Apt. No. 1B, New York, New York." Nelson and Ramon Oquendo allege that they are over the age of 21 (para. 3).

Based upon this unrebutted evidence presented by respondents, it is clear that Bill and Rachel Oquendo have not entered into any tenant-subtenant relationship with their children. The evidence demonstrates that all parties reside in the apartment with Bill and Rachel Oquendo as an incident to the family relationship. (Jane Street Assn. v. Kroll, NYLJ March 15, 1983, p. 10, col. 4 [App.Term, 1st Dep't]. However, since it is conceded that these other occupants are the children and grandchildren of Bill and Rachel Oquendo, and live together in the subject apartment with Bill and Rachel Oquendo, these parties can be removed under a warrant of dispossession although none of them are made parties to the summary proceeding. The spouse of a tenant as well as the tenant's children, grandchildren, servants, boarders and guests who live with the tenant, and who are not subtenants, can all be removed under a warrant of dispossession, though none of them is made a party to the summary proceeding brought against the tenant. None of these occupants is either a necessary or a proper party to the summary proceeding. (Croft v. King, 8 Daly 265 [Com Pl]; Fults v. Munro, 202 N.Y. 34, 95 N.E. 23; Rasch, New York Landlord & Tenant, 3rd ed. sec. 38:32). Therefore, the children of Bill and Rachel Oquendo are neither necessary nor proper parties to this summary proceeding. Accordingly, the motion to dismiss on the ground that petitioner failed to either name or serve known legal residents to the subject premises is denied.

b) Respondents next move to dismiss on the ground that this Court lacks subject matter jurisdiction over this proceeding.

Subject matter jurisdiction refers to the power of the Court to hear the kind of case that is presently before it for adjudication (Matter of Newham v. Chile Exploration Co., 232 N.Y. 37, 133 N.E. 120; Matter of Bougeron, 17 N.Y.2d 264, 270 N.Y.S.2d 578, 217 N.E.2d 639; Thrasher v. U.S. Liability Ins. Co., 19 N.Y.2d 159, 278 N.Y.S.2d 793, 225 N.E.2d 503; Hunt v. Hunt, 72 N.Y. 217). Whether a Court has subject matter jurisdiction is determined by the constitution, statutes and (occasionally) the rules which confer jurisdiction. (Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3211, C 3211:11), and not by the particular facts of any case. (Hunt v. Hunt, supra). The question to be resolved is whether the Court has jurisdiction over the "type" of case, not whether it has jurisdiction over "this particular" case. (1890 Realty Co. v. Ford, 121 Misc.2d 834, 469 N.Y.S.2d 533; Treiman, Subject Matter Jurisdiction in Summary Proceedings, NYLJ, March 2, 1990, p. 1, col. 1; Hunt v. Hunt, supra).

Under subdivision b of section 15 of article VI of the New York State Constitution, the Civil Court of the City of New York has jurisdiction over summary proceedings to recover possession of Real Property (RPAPL sec. 701; UJCA sec. 204). Therefore, this Court has subject matter jurisdiction over this proceeding. An examination of the objections raised by respondents which, it is alleged, deprive the Court of subject matter jurisdiction, demonstrates that respondents confuse the Court's competence to entertain a summary eviction proceeding with the Court's ability to render a judgment on the merits of this particular case. (Lacks v. Lacks, 41 N.Y.2d 71, 390 N.Y.S.2d 875, 359 N.E.2d 384; Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 166, 278 N.Y.S.2d 793, 225 N.E.2d 503; Treiman, Subject Matter Jurisdiction in Summary Proceedings, supra).

c) Pursuant to its objection to subject matter jurisdiction, respondents first allege that the petition is defective because petitioner failed to allege the status of the subject premises with respect to the local rent control laws. An examination of the petition reveals that it contains no allegations whatsoever as to the status of the premises. Respondents submit that the premises are not subject to rent control or rent stabilization but rather federal regulation. (Magoolaghan aff. p. 5, para. 12).

The failure to allege the control status of the premises is not a "jurisdictional defect." A proceeding is not jurisdictionally defective so long as the Court has jurisdiction over the subject matter of the proceeding pursuant to Article 7 of the Real Property Actions and Proceedings Law and jurisdiction over the person by dint of proper service. (Jackson v. New York City Housing Auth., 88 Misc.2d 121, 387 N.Y.S.2d 38 (App.Term, 1st Dep't]; Weiner v. Zimmerman, NYLJ July 6, 1983, p. 6, col. 2 [App.Term, 1st Dep't]. Where the regulatory history of the premises is omitted or misstated, the landlord should be permitted to conform the pleadings to the proof in the absence of any prejudice to the tenant. (Weiner v. Zimmerman, supra). Respondents have made no allegation that they are prejudiced by any omission. Additionally, in 215-219 Union Ave. Assoc. v. Miller, 134 Misc.2d 507, 511 N.Y.S.2d 489 the Court held that it is not a jurisdictional requirement to recite in the petition that the tenant is a section 8 tenant and that there is compliance with federal regulations reasoning:

"HUD section 8 tenants ... know whether they are section 8 or not. They have entered into an agreement with the local agency or HUD and so there is no guessing as to the landlord's position."

Accordingly, since there is no demonstration of any prejudice, and since respondents concede that the premises are subject to federal regulation, the Court will permit petitioner to amend the petition at trial to specify the regulatory status of the premises (Southcroft Co. v. Peninah Konopko, 128 Misc.2d 179, 488 N.Y.S.2d 1011).

d) Respondents next allege that they cannot be evicted unless and until the tenant is afforded an administrative hearing according to the specifically prescribed due process requirements set forth in Escalera v. New York City Housing Auth., 425 F.2d 853 (2nd Cir.1970). This argument is without merit.

Escalera involved a class action which challenged the constitutionality of procedures used by the New York City Housing Authority to terminate the tenancy of its residents. The challenged procedures included a summary notice which did not give tenants advance notice of all items which might be considered against them, a conference with a project manager who did not divulge all entries in the tenant's file--some of which may influence the decision to terminate the tenancy--, denying the tenants access to their files, and the denial of the opportunity to confront and cross-examine persons who supplied evidence. If after such procedures the Housing Authority decided to terminate the tenancy, a holdover proceeding would be commenced...