v Shasho, 197 AD3d 534 ).Īccordingly, the proceeding is dismissed as to Co-Respondent. Under these circumstances, the court will not permit substitution, as to do so would render the jurisdictional requirements of CPLR 1024 meaningless (see Wilmington Trust, N.A. Here, the undisputed evidence submitted in support of Co-Respondent's motion conclusively establishes not only that Petitioner could have discerned Co-Respondent's identity, but rather that it knew his name nearly two years before commencement of the Petition. v New Breed Automotive, Inc., 54 Misc 3d 126 RR Reo II, LLC v Omeje, 33 Misc 3d 128 ). Where a party has failed to exercise due diligence in utilizing CPLR 1024, personal jurisdiction has not been obtained and the proceeding must be dismissed as to the improperly named party (Bumpus at 30 Redstone Garage Corp. While use of the pseudonymous John Doe is permitted pursuant to CPLR 1024 for an unknown party, it is a mechanism of last resort, to be used only after attempting to ascertain the party's legal name (Bumpus v. Instead, it argues that given the early posture of this proceeding, and the fact that Co-Respondent has appeared by counsel and availed himself of this court's jurisdiction, the court should permit Petitioner to amend the caption to substitute Co-Respondent Jorge Ceballos for John Doe. In its opposition, Petitioner does not dispute the authenticity of Co-Respondent's Octoemail, or that it had knowledge of Co-Respondent's identity before filing the Petition. In such circumstances, the court must ascertain "whether the proponent of the pleading has a cause of action, not whether he has stated one" (Sokol v Leader, 74 AD3d 1180, 1181-1182 ). 152 AD3d 806, 808, citing Bokhour v GTI Retail Holdings, Inc., 94 AD3d 682 Rovello v. While the use of evidentiary materials, including affidavits, in support of a motion to dismiss pursuant to CPLR(a)(7) is generally disfavored, they may be considered where such submissions "conclusively establish that the has no cause of action" (Phillips v Taco Bell Corp. Co-Respondent annexes to his affidavit an email dated October 10, 2020, which attaches the underlying Supreme Court complaint and is addressed to Hankin & Mazel PLLC, the law firm representing Petitioner in this proceeding. 717395/2020-QU against Respondent for fraud, breach of contract, and others claims relating to Respondent's ownership of shares in the subject premises. He further avers that Petitioner knew of his identity since at least 2020, when Co-Respondent's counsel emailed Petitioner's counsel a copy of a complaint filed by Co-Respondent under Supreme Court Index No. In support of his motion, Co-Respondent offers an affidavit, in which he states that he has resided in the subject premises since 2013.
#CLEARVIEW GARDENS CO OP PRO#
Petitioner opposes the motion and cross-moves to join Co-Respondent and to amend the caption nunc pro tunc, in effect asking the court to substitute Co-Respondent's legal name, Jorge Ceballos, in lieu of John Doe. Co-Respondent now moves to dismiss this proceeding pursuant to CPLR(a)(7) and (a)(10) based on improper use of a fictitious named under CPLR 1024, arguing that Petitioner knew his identity before commencing this proceeding. Both Respondent and Co-Respondent have appeared by counsel. Petitioner named John Doe ("Co-Respondent") as an undertenant. Petitioner Clearview Gardens Fourth Corporation ("Petitioner"), a cooperative corporation, commenced the instant nonpayment against Respondent Salvatore Mula ("Respondent") in July 2022 for failure to pay monthly maintenance charges accrued pursuant to a proprietary lease.
Upon the foregoing cited papers, the court's decision and order is as follows: Notice of Cross-Motion & Supporting Affirmation 13-14 Notice of Motion & Affirmation/Affidavits/Exhibits Annexed 8-11 Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Respondent-Undertenant's motion to dismiss, and Petitioner's cross-motion to amend the caption: JOHN DOE AND JANE DOE, Respondents-Undertenants This opinion is uncorrected and will not be published in the printed Official Reports.Ĭivil Court of the City of New York, Queens CountyĬlearview Gardens Fourth Corporation, Petitioner-Landlord, Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
Civil Court Of The City Of New York, Queens County
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