Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of the Petitioner's Motion for Joinder Pursuant to CPLR § 401, Leave to Serve and File an Amended Notice of Petition and Petition, an Order Finding all Respondents to Not Be in the [*2]Military or Dispensing With Non-Military Affidavits, a Final Judgment of Possession Against All Respondents and Issuance of a Warrant of Eviction Forthwith:

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

This is a Nonpayment Proceeding commenced by petitioner-landlord 47 Featherco L.L.C. against respondent-tenant Bianelli A. Castillo by Notice of Petition and Petition dated February 23, 2016, filed with this Court on February 25, 2016 and seeking rent for the month of January 2016 in the amount of $1350. The petition is predicated on a "Three (3) Day Notice" dated January 12, 2016 demanding payment of the sum of $2700, comprised of rent in the amount of $1350 per month for two months.

Upon respondent's default in answering the petition within five days, a City Marshal's warrant requisition dated March 28, 2016, supported by an attorney's request dated March 23, 2016 and two affidavits from petitioner's agent Juan Colon sworn to March 18, 2016, was filed with the court on March 29, 2016 but rejected by the Warrant Clerk on March 31, 2016 with the following notation: "Requisition Received: March 29, 2016". Apparently the warrant request was denied because, in the meantime, on March 18, 2016, an "Answer in Person" had been filed with the court on behalf of the respondent-tenant by someone named Daniel Torres, who indicated that he was a "Friend". The Answer included a defense of payment, or partial payment, and a general denial. The case was set down for an initial appearance on March 29, 2016.

On March 29, 2016, someone identifying herself as Lisa Vazquez, "a family friend", appeared; the case was adjourned to April 20, 2016 by Stipulation signed by petitioner's counsel and Lisa Vazquez ("without creating tenancy rights by reason of the execution of this stipulation") "for respondent to personally appear or for LISA VAZQUEZ to appear with a notarized letter of authorization". The Stipulation includes the assertion that "Lisa Vazquez states that respondent is temporarily out of country, that she is a family friend, that she does not reside in the premises and that respondent is not in the US military nor is he dependent upon anyone in the US military."

On April 20, 2016 apparently neither respondent nor any of her friends appeared for her and notations on the file indicate that the Court issued an order on default for a final judgment to be entered for petitioner in the amount of $1350, with issuance of the warrant stayed five days, pending submission of a non-military affidavit.

Also on April 20, 2016, an Order to Show Cause was filed, signed and made returnable on May 5, 2016. That Order to Show Cause is supported by the affidavit of Lisa Vazquez, who indicated that she was a "friend of the tenant" Bianelli A. Castillo, and that "as of now only have $2000 need more time". Copies of two money orders, each dated April 20, 2016, made out to petitioner, in the amount of $1000 and bearing a purchaser's name of Lisa Vazquez, were attached to the Order to Show Cause.

On May 5, 2016, over petitioner's objection but without written opposition, the Court granted the Order to Show Cause to the extent of staying execution of the warrant of eviction to May 26, 2016 for payment of $6750. The court's Decision and Order noted that respondent had not appeared but that "a friend, Lisa Vasquez, states that respondent is out of the country", and [*3]that "Respondent's friend attached proof that $2000 was sent to petitioner (4/20/16) which would leave a balance of $4750 once received."

On May 26, 2016, Daniel Torres, identifying himself as "the FRIEND of the tenant", filed an Order to Show Cause supported by his affidavit which stated that "My friend is at the hospital. I want to ask for more time until Lisa Vasquez is release from the hospital" and that "I am respectfully asking the Court for more time because Lisa Vasquez is at this time in the hospital and has been there for a few days. Once she is release from the hospital she will be able to make the payment." The court declined to sign this Order to Show Cause, noting that "T owes $6750 for rent through May 2016 (no warrant yet). T may renew upon proof of ability to pay."

On June 13, 2016 petitioner filed a motion, returnable June 27, 2016, seeking leave to renew and reargue ^[FN1] the Court's Decision and Order dated April 20, 2016 under CPLR §§ 2221(a), (d) and (e) and, upon reargument, amending the Order to allow issuance of the warrant of eviction forthwith; in the alternative, petitioner sought vacatur of the Order pursuant to CPLR 5015 and entry of a final judgment in the amount of $6,100 as all rent owed through June 30, 2016 with issuance of the warrant of eviction forthwith. In support of its motion, petitioner explained that it could not obtain a warrant of eviction until the Court's Order of April 20, 2016 was amended, as the Court had overlooked the fact that no warrant had yet issued.

By Decision and Order dated June 27, 2016, the Court denied petitioner's motion, noting that "Service of mot[ion] did not include respondent's zip code in address. Addit[ionally], the mot[ion] does not address non-military affidavit. Warrant may not issue until submission of non-military affidavit."

On July 11, 2016 petitioner filed another motion, returnable July 25, 2016, seeking leave to renew and reargue ^[FN2] the Decision and Order dated June 27, 2016 under CPLR §§ 2221(a), (d) and (e) or, in the alternative, to vacate the Order pursuant to CPLR § 5015 and permit the entry of a final judgment in the amount of $7450.00 with issuance of the warrant of eviction forthwith. Thereafter, on September 16, 2016 petitioner submitted a request to withdraw this motion, which request was granted.

In the meantime, on August 12, 2016, Miguel Colon, another person identifying himself as "the friend of the tenant", filed an Order to Show Cause supported by his affidavit which stated that "Rent has been paid to the owner of the apartment, in full." This Order to Show Cause was signed and made returnable on August 26, 2016, on which date it was denied due to nonappearance of the moving party. Also on August 26 Daniel Torres filed his second Order to Show Cause — which was the fourth Order to Show Cause filed in this proceeding on behalf of [*4]the respondent-tenant by one of her purported friends - supported by his affidavit in which he identified himself as "the friend/tenant of the tenant" and stated that "I paid my part of the rent to the owner of the apartment, she told she will pay all the rent that is owed." This Order to Show Cause was signed and made returnable on September 9, 2016. On the return date, petitioner's counsel appeared and orally advised the court that petitioner had learned of a serious deception perpetrated with regard to the renting of the premises; specifically, that respondent Bianelli A. Castillo — whom petitioner had arranged to have appear in court that day - had never signed a lease for or lived at the premises, that someone else fraudulently had used her name and identity documentation to rent the apartment from petitioner and then that person had sublet it to others who were occupying the apartment. The Court advised petitioner's counsel to consider bringing a different type of proceeding or making an appropriate motion and denied the Order to Show Cause due to nonappearance of the moving party.

On September 28, 2016 petitioner filed the motion which is now before the Court, returnable on September 30, 2016. The affidavit of service accompanying this motion indicates that copies of it were sent individually to Bianelli A. Castillo, Miguel Colon, Daniel Torres, John Doe and Jane Doe on September 21, 2016 by overnight delivery. Daniel Torres and Miguel Colon received the motion papers and appeared in court on September 30, claiming to be occupants of the apartment. The case was adjourned to October 14, 2016 for them to seek legal counsel and submit any opposition they might have to the motion. On October 14, 2016 Mr. Torres and Mr. Colon appeared in court again, without counsel and without any written opposition, and the Court deemed the motion submitted with decision reserved. No other "John Doe" or "Jane Doe" has appeared in court, although Mr. Colon indicated that there was a third, female person living in the apartment with him and Mr. Torres.

In this nonpayment proceeding against a respondent-tenant by the name of Bianelli A. Castillo, it appears that there is both a real person by this name who was the victim of identity theft who has never had anything to do with the subject premises and an imposter with a name that is not known to petitioner who fraudulently used Ms. Castillo's identity to lease the apartment from petitioner and then sublet it to two men by the names of Daniel Torres and Miguel Colon. Mr. Torres has appeared in court on at least five occasions: first on March 18, 2016 when he filed an Answer, next on May 26, 2016 when he took out an Order to Show Cause which the court declined to sign, next on August 26 when he took out his second Order to Show Cause which was denied on the return date due to nonappearance by Mr. Torres or anyone else for respondent on the return date, and then twice on this motion. Mr. Colon has appeared in court on at least three occasions: first on August 12, 2016 when he took out an Order to Show Cause which the court signed but which was denied due to nonappearance by Mr. Colon or anyone else for respondent on the return date, and then twice on this motion. Neither Mr. Torres nor Mr. Colon has asserted any facts to indicate that petitioner knew or should have known of their presence in the apartment prior to the commencement of this proceeding, by paying rent to or otherwise interacting with petitioner.

The court on April 20, 2016 ordered the entry of a final judgment for possession with a money judgment in the amount of $1350 against Bianelli A. Castillo and in favor of petitioner. At that time, petitioner still did not know about the fraud that had been committed by the person posing as Bianelli A. Castillo, and did not know that persons other than the real or fictitious Bianelli A. Castillo — Mr. Torres, Mr. Colon, and a third person whose name is not known - were [*5]living in the apartment.

Given these facts, the Court finds that Mr. Torres and Mr. Colon are subtenants who are not "necessary" parties under CPLR S 1001(a) whose presence is indispensable to the according of complete relief as between the landlord and tenant. As explained by the Appellate Division, First Department in 170 West 85th Street Tenants Ass'n v. Cruz, 173 AD2d 338, 569 N.Y.S.2d 705 (1st Dep't 1991), "The rights of a person whose claim to possession derives from the lessee are subordinate and are extinguished by a judgment of possession in favor of the lessor. Due process requires only that, for the warrant to be effective against a subtenant, licensee or occupant, he be made a party to the proceeding, either by naming him in and serving him with the petition and notice of petition or by joining him as a party during the pendency of the proceeding." Rather, they are "proper" parties, whom it is appropriate for petitioner to seek joinder of as additional named respondents "so that any warrant obtained in this proceeding will be effective against them." Triborough Bridge & Tunnel Auth. v. Wimpfheimer, 165 Misc 2d 584, 633 N.Y.S.2d 695 (App. Term 1st Dep't 1995). See also, e.g., 2655 Realty, LLC v. Berger, 50 Misc 3d 1218(A), 31 N.Y.S.3d 924 (Civ. Ct. NY Co. 2016); Acquisition Am. v. Diaz, 20 Misc 3d 1127(A), 872 N.Y.S.2d 689 (Civ. Ct. NY Co. 2008); Wilson v. 30 Broad St. Assocs., L.P., 178 Misc 2d 257, 679 N.Y.S.2d 521 (Civ. Ct. NY Co. 1998).

This is not a situation where the occupants might be permitted to appear and raise claims of succession or other independent possessory rights to the apartment. Compare, e.g., Rochdale Vil., Inc. v. Goode, 16 Misc 3d 49, 842 N.Y.S.2d (App. Term 2nd Dep't 2007)(adopted sister of tenant of record who established a colorable claim of succession rights has standing to assert defenses to a nonpayment proceeding); Acquisition Am. v. Diaz, supra (son of tenants of record who lived in apartment since birth has standing to appear in nonpayment proceeding and to be heard on his claim of succession rights). Rather, the facts of this case fall squarely within the parameters of the decision in 523 West 138th Street Realty Co., Inc. v. Castillo, N.Y.L.J., Aug. 14, 1990, at 17, col. 1 (App. Term 1st Dep't), discussed at length in the aforementioned case of Acquisition Am. v. Diaz, which explained that in Castillo,

the court held that the record tenant's brother-in-law was not a necessary party to the proceeding and could be evicted. The petitioner in Castillo did not know about the brother-in-law's occupancy when it commenced the proceeding against the record tenant. Also, the brother-in-law made no claim of independent possessory rights to the apartment. The Appellate Term in Castillo allowed the petitioner to evict the record tenant's brother-in-law because the petitioner did not know about the occupant's residency in the apartment when it commenced its proceeding and because the brother-in-law did not claim independent possessory rights.

The occupancy of Mr. Torres and Mr. Colon, like that of the brother-in-law Castillo, was not known to petitioner when it commenced this proceeding. They have no claim of independent possessory rights to the apartment, as they never paid rent to petitioner, never identified themselves to petitioner in any other manner and assert no claim to being family members of either the real or the imposter Bianelli A. Castillo.

Accordingly, petitioner's motion to join Mr. Torres and Mr. Colon, as well as "Jane Doe" and "John Doe", as "Respondents-Undertenants" to this proceeding is granted, the proposed amended Notice of Petition and Petition attached as Exhibit C to petitioner's motion papers is deemed properly served upon them and filed, a final judgment of possession is issued against Daniel Torres, Miguel Colon, Jane Doe and John Doe and the prior judgment against Bianelli A. [*6]Castillo is modified to the extent of limiting it to one of possession only, with no money judgment against her. With regard to nonmilitary affidavits, the Court finds that none are needed under the unique circumstances of this case: given that the real Ms. Castillo has never had any connection to the premises, her military status is irrelevant; nor is the military status of the imposter Ms. Castillo relevant, given that she neither is whom she purported herself to be nor an occupant of the premises and her true identity is unknown; with regard to Mr. Torres and Mr. Colon, they have both appeared in this Court on numerous occasions; with regard to "Jane Doe" and "John Doe", to the extent such individuals exist and occupy the apartment, there is insufficient information about them available to petitioner to require any further investigation into their military status. The warrant of eviction may now issue forthwith, execution stayed through and including November 30, 2016.

This constitutes the Decision and Order of this Court, copies of which will be mailed out to all parties listed below.