The respondent, Guramrit Hanspal, moves to dismiss the instant holdover proceeding based upon an alleged insufficiency of the notice to terminate, as well as the alleged failure of the petitioner to name a necessary party. The petitioner submits no opposition.

This holdover proceeding was commenced on or about September 20, 2006. The petitioner came into possession of the premises located at 2468 Kenmore Street, East Meadow, New York, by way of a public judgment of foreclosure sale, on October 12, 2005. On August 21, 2006, a ten (10) day notice to quit was served upon the respondents.

Pursuant to RPAPL § 713, entitled "Grounds where no landlord-tenant relationship exists", an individual may maintain a summary proceeding upon the purchase of property in a foreclosure, as specified in subsection (5) five, which states:

[t]he property has been sold in foreclosure and either the deed delivered pursuant to such sale, or a copy of such deed, certified as provided in the civil practice law and rules, has been exhibited to him.

As such, a ten (10) day notice to quit is a condition precedent to maintaining the instant action and must be served upon the respondents, in accordance with RPAPL § 735. Here, service of the ten (10) day notice to quit complied with RPAPL § 713 and § 735.

The respondent alleges that the notice to quit is insufficient as it does not contain a date certain on which the notice is to expire, nor is it dated. To support its allegations, the respondent refers this Court to Security Pacific National Trust Co. v. Cuevas (see, 176 Misc 2d 846, 675 NYS2d 500 [Civ Ct City of NY 1998]). In Security, the ten (10) day notice to quit was found to be defective because the referee's deed contained a copy and not an original of the attorney's signature certifying the deed. Here, the respondent does not allege that the referee's deed is deficient, rather he challenges the sufficiency of the notice to quit. [*2][*3]

In Katz v. Grifa, the Court commented, in regard to the contents of a notice to quit, that ". . . RPAPL § 713 does not specify any required contents of a notice to quit other than it must state that a respondent has a ten day period to remove himself or herself from the premises" (see, 156 Misc 2d 203, 591 NYS2d 758 [Civ Ct City of NY 1992]; citing, A & Z Realty Co. v. Murphy, NYLJ June 19, 1991, p 25, col 2 [Civ Ct Bronx Co]). In light of this Court's review of the petition, notice to quit and moving papers, the Court finds that the petitioner's failure to specify a date certain for the respondent to vacate the premises is not a fatal defect. The respondent was provided with sufficient notice that the failure to vacate the premises would result in the commencement of a summary proceeding. Moreover, a review of the affidavit of service indicates that said notice to quit was served on August 21, 2006. This affidavit is prima facie evidence of proper service (see, Sando Realty Corp. v. Aris, 209 AD2d 682, 619 NYS2d 140 [2d Dept 1994]).

Counsel argues that this case should be dismissed because Joanne Ayale was not named as a party. It is contended that Joanne Ayale is a necessary party because she is a co-tenant (see Affidavit of Guramrit Hanspal, dated October 17, 2006). The moving papers demonstrate that Joanne Ayale was named in a prior 2005 proceeding to recover possession of the premises. The affidavit of service of the ten (10) day notice concerning the 2005 refers to Joanne Ayale as a co-tenant.

This Court agrees that Joanne Ayale is a necessary party to this litigation. The Hon. Robert F. Dolan writes in Rasch's Landlord & Tenant, § 38:28 that a:

Necessary parties are those without whom the court cannot, if proper objection be made to their omission, proceed to a decree or judgment. Proper parties are those whose absence will not prevent the entry of a binding judgment, but whose presence may make that judgment more complete.

See, also 82 N.Y.Jur. 2d Parties § 105, discussing who is a necessary party in a special proceeding.

In Landlord and Tenant Practice in New York, David Finkelstein and Lucas A. Ferrara, § 14:96, state that the following are considered to be necessary parties:

Every party that executed a lease, or who otherwise stakes or holds an independent possessory entitlement to the premises sought to be recovered, is usually considered a "necessary" party to the proceeding and should be named and separately served.

Since Ms. Ayale is a necessary party, should this proceeding be dismissed, or should the petitioner be given an opportunity to add Ms. Ayale as a respondent? The answer is that the Court should allow joinder of a necessary party without dismissal when possible. This is clearly set forth in New York Practice, Fourth Edition, David D. Siegel § 132, p 227, wherein the following appears: [*4][*5]

If X ought to be joined and is subject to jurisdiction, CPLR 1001(a) directs that she be named and joined now. Hence the underlying premise of the joinder statute is that there is no occasion to determine if X is "indispensable" as long as jurisdiction of X can be obtained. X simply gets joined and the problem is done with. The point sometimes seems to be overlooked by the courts, but as long as the statute of limitations is still alive for an action that joins the needed party, the harm is minimal. Of course, if the plaintiff has had ample opportunity to join the needed parties and fails to, dismissal may result.

Based upon the above, the petitioner is granted ten (10) days from the date of this order to add Ms. Ayale as a party to this litigation.

Service of the notice of petition and petition was made on "Jane Smith" as Jane Doe No.1. A petitioner may not use a pseudonym "John or Jane Doe" or "Jane Smith" when the true name of the respondent is known. See Rasch's Landlord & Tenant, § 41:23, Triborough Bridge and Tunnel Authority v. Wimpfheimer, 165 Misc 2d 584, 633 NYS2d 695 (App Term 1985); Chavez v. Nevell Mgmt Co., 69 Misc 2d 718, 330 NYS2d 890 (City Civ Ct 1972). Thus, petitioner cannot use "Jane Smith" to refer to Ms. Ayale when her name is known.

Accordingly, the respondent, Hanspal's motion to dismiss is denied in its entirety.

The petitioner is hereby directed to amend the Notice of Petition and Petition, adding Joanne Ayale, and serving Ms. Ayale within ten (10) days of this decision. A copy shall be provided to all parties. The petitioner shall provide this Court with proof of service. All parties are directed to appear in this action at the First District Court, 99 Main Street, Landlord/Tenant Part (Civil 2), Hempstead, New York on the 5th day of February, 2007 at 9:30 a.m.

The failure to add Ms. Ayale within ten (10) days of this order shall result in this proceeding being dismissed.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated: January 16, 2007

CC:Mason & Mason, P.C.

The Law Offices of Jordan S. Katz, P.C.

SF/mp [*6][*7]