In this application, the movant's third post eviction order to show cause, movant currently appears through counsel and seeks an order vacating her default and restoring her to possession of the subject premises. Movant, an individual claiming possessory rights to the premises, mainly argues that petitioner's failure to name her or a "John Doe" or a "Jane Doe" as a party respondent, is fatal to petitioner's case, as it denies movant due process, and as a result, movant is entitled to be restored to possession of the premises.

It is undisputed that the movant was an occupant at the premises. She claims to have entered possession in August of 2013 and "paid rent" to another tenant, not the petitioner. It is also undisputed that when proceedings affecting possession of the premises have been heard in this court, movant was in attendance in the courthouse and courtroom(s) and failed to formally appear in ths action or assert any rights to which she believed she was entitled.

Petitioner opposes the application in writing and on various court dates, argued that: (1) in excess of $14,892.00 was due through February ^[FN1]; (2) the tenants of record stipulated to voluntarily vacate the premises; (3) the tenants of record are no longer in possession of the premises; and (4) the named occupants have not sought any post eviction relief. As a result, petitioner concludes, since the record tenants' rights have been surrendered, movant's possessory claims have been extinguished.

Procedurally, petitioner argues that the application is improper as to form since it fails to comply with the Civil Practice Law and Rules ("CPLR"). Specifically, petitioner argues that movant is not a party to this action, movant has not sought to intervene as a party in this action (CPLR§§1012 and 1013), nor is there a proposed pleading annexed to movant's application (CPLR §1014), and as a result, the relief sought in the moving papers must be denied.

Counsel for the movant, argues that because his client had an independent right to possession of the premises, petitioner was required to name her, either by name or as a "John or [*2]Jane Doe" respondent, and as a result of petitioner's failure to do so, respondent must be restored to possession.

This court disagrees with movant's attorney's position. In the matter at bar, the tenants of record, the named respondent's, stipulated to voluntarily vacate the premises, by a date certain (January 31, 2014) and did in fact vacate and have not sought any post eviction relief.^[FN2] As a result, any possessory claims by any unnamed individual(s) are moot. Indeed, "the possessory issues raised ... have been rendered moot, in view of the ... expiration of the record tenants' lease agreement and their surrender of possession to the overlandlord..." Power v Newell, 42 Misc 3d 143 (App Term 1st [2014]).

Additionally, movant having appeared in court during scheduled proceedings, and choosing not to assert her rights,^[FN3] if any, cannot now be heard to argue that her right to due process was violated by the petitioner for failing to name either a "John Doe" or a "Jane Doe" as movant was clearly afforded notice and opportunities to be heard, and voluntarily chose not to do so. Indeed, "conduct [which] constitute[s] an intentional default [is] not excusable" Perellie v Crimson's Rest., 108 AD2d 903 (2nd Dept [1985] see also, 73 NY Jur2d Judgments §300 [2014] "[w]here a party has deliberately and intentionally permitted a default, the motion to vacate ... will usually be denied."

This court takes judicial notice of the court files and notes that the named respondents in this proceeding were petitioners in a separate action against the current movant.^[FN4] In that proceeding, the instant movant, according to a stipulation of settlement, agreed to vacate the premises by January 31, 2013, the same date the respondent's in this proceeding agreed to vacate.

As prior to execution of the warrant, movant appeared in court on dates this matter was scheduled to be heard and chose not to assert any rights she believed she was entitled to coupled with movant being a named respondent in a pending (and overlapping in time) proceeding, where she agreed to vacate the premises by the same date the tenants of record were required to vacate in the instant matter, there is no basis to conclude that movant did not receive due process and opportunities to be heard, in this court.

Accordingly, the motion is denied, all stays are vacated except that petitioner shall be stayed from removing movant's belongings though 3PM on March 14, 2013, to provided movant supervised access between 10AM and 3PM, on March 14, 2013, to remove her belongings.

The foregoing constitutes the decision and order of the court.

_______________________ [*3]

Dated: Brooklyn, NYSusan F. Avery, JHC

March 13, 2014