Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondents' order to show cause to amend the answer and for dismissal, or, in the alternative, for an order joining 204 West 55 Street LLC to this proceeding:

Papers Numbered

This summary licensee holdover proceeding was commenced by petitioner, pro se, in July 2024. Counsel for petitioner later appeared. Respondents A.S., S.H., W.H., and K.H. (hereinafter "respondents") filed pro se answers in April 2025. Subsequently, counsel appeared for respondents and made the instant order to show cause seeking amendment of the answer and dismissal, or, in the alternative, the joinder of 204 West 55 Street LLC to this proceeding. Following the submission of opposition and reply papers, this court heard argument on the order to show cause on July 18, 2025. On the record at argument, counsels for both parties confirmed that they consented to granting the prong of the motion seeking amendment of the answer. Accordingly, the amended answer (NYSCEF Doc. 14) is deemed served and filed.

Respondents first seek dismissal pursuant to CPLR § 3211(a)(2) on the basis that the court lacks subject matter jurisdiction. Respondents argue that because respondents are petitioner's family members (namely, ex-wife and children), a summary eviction proceeding against them may not be maintained. Initially, it is a basic principle that Housing Court is "vested with subject matter jurisdiction over housing matters by statute (NY City Civ. Ct. Act § 110)." (170 West 85th Street Tenants Assn. v Cruz, 173 AD2d 338, 339 [1st Dept 1991]; see also 433 West Assocs. v Murdock, 276 AD2d 360, 360-361 [1st Dept 2000]; Williamsbridge-3067 Realty LLC v Ramos, 86 Misc 3d 130[A], 2025 NY Slip Op 50975[U] [App Term, 1st Dept 2025]; 716 Realty, LLC v Zadik, 38 Misc 3d 139[A], 2013 NY Slip Op 50194[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As to the issue at bar, there is no per se familial exception to the maintenance of a summary holdover proceeding (see Tausik v Tausik, 11 AD2d 144 [1st Dept 1960], affd 9 NY2d 664 [1961]; Aloni v Oliver, 70 Misc 3d 137[A], 2021 NY Slip Op 50069[U] [App Term, 1st Dept 2021]; Heckman v. Heckman, 55 Misc 3d 86 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). A narrow exception to the ability to maintain a summary proceeding against a family member exists where there is a "support" obligation owed by the petitioner, whether to a spouse or to a minor child (see Rosenstiel v Rosenstiel, 20 AD2d 71, 76-77 [1st Dept 1963]; Aloni, 2021 NY Slip Op 50069[U], *2; Heckman, 55 Misc 3d at 88).

Respondents assert that petitioner moved them into the subject premises in 2011 after they were living in a shelter in the Bronx.^[FN1] In 2013, after petitioner returned from Pakistan, he lived with respondents but was removed by the police after domestic violence incidents. Respondents state that petitioner did not live in the subject premises after he was removed in 2013. Thus, respondents argue that the circumstances of their entry into possession and continued possession in the subject premises warrant a Rosenstiel-type exception and removal from this court's subject matter jurisdiction. Petitioner opposes and replies that as a divorced spouse and adult children, respondents are not parties to whom petitioner has a present obligation of support.

While neither side annexes proof that petitioner and A.S. were divorced, there is no dispute that petitioner and A.S. are no longer married. It is well established that the Rosenstiel [*2]exception only applies to spouses whose rights vis-à-vis each other have not been annulled or modified (see Rosenstiel, 20 AD2d at 73; Halaby v Halaby, 44 AD2d 495, 499 [1st Dept 1974]; Aloni, 2021 NY Slip Op 50069[U], *2). While the record may be more fully developed at trial as to any continuing support obligation owed to petitioner's adult children, respondents' motion does not demonstrate, as a matter of law, that this court lacks subject matter jurisdiction over the instant proceeding (see Aloni, 2021 NY Slip Op 50069[U], *2). Thus, the court declines to dismiss the proceeding for lack of subject matter jurisdiction pursuant to CPLR § 3211(a)(2).

Respondents also seek dismissal pursuant to CPLR § 3211(a)(7) on the basis that the predicate notice to quit was not served in accordance with RPAPL § 735. Petitioner argues that respondents waived the defense by inadequately pleading it in their answer. It is elementary that a proper predicate notice be served in accordance with the law in order for a summary eviction proceeding to be maintained (see Mautner-Glick Corp. v Glazer, 148 AD3d 515, 516 [1st Dept 2017]; 1646 Union, LLC v Simpson, 62 Misc 3d 142[A], 2019 NY Slip Op 50089[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Moreover, this is not a jurisdictional requirement, but rather a condition precedent to the maintenance of a proceeding (see 170 West 85 Street Tenants Assn. v Cruz, 173 AD2d 338, 339 [1st Dept 1991] ["The failure of a petitioner to comply with a statutory notice requirement, where applicable, represents merely the failure to comply with a condition precedent to suit and cannot properly be said to affect the court's jurisdiction."]). Under RPAPL § 713, a notice to quit must be served in accordance with RPAPL § 735 (see Ford v Ford, 86 Misc 3d 129[A], 2025 NY Slip Op 50848[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]; Plotch v Dellis, 60 Misc 3d 1, 3-4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

To the extent that petitioner argues that respondents waived any defense based on improper service of the notice to quit and cites to cases involving the waiver of jurisdictional defenses, the court finds that this argument is unavailing. Since service of a predicate notice does not implicate personal or subject matter jurisdiction, it is not subject to waiver for failure to properly raise the issue in an answer under CPLR § 3211(e). A motion to dismiss brought pursuant to CPLR § 3211(a)(7) "may be asserted at any time, even if not pleaded." (Chelsea 8th Ave. LLC v Chelseamilk LLC, 220 AD3d 565, 566 [1st Dept 2023] [citing CPLR § 3211(e)]). Turning to the merits of the motion, upon a review of the affidavits of service filed by petitioner, service of the notice was facially improper for all but one of the respondents. The affidavits describe personal service of the notice upon W.H. on June 17, 2024, and substitute service upon K.H. No proof of service has been filed or proffered for any other respondent. The alleged service upon K.H. consists only of personal delivery upon W.H. and first-class mailing. There is no assertion or allegation of registered or certified mailing of the notice upon K.H.

Substitute service under RPAPL § 735(1) requires registered or certified mailing and first-class mailing after delivery upon a person of suitable age and discretion who resides or is employed at the subject property. Thus, service of the notice was patently defective as to K.H., and nonexistent as to A.S., Amaro Abdelati, Sajda Bano, and S.H. No traverse hearing is necessary where service is facially defective under RPAPL § 735 (see Doji Bak, LLC v Alta Plastics, 51 Misc 3d 148[A], 2016 NY Slip Op 50792[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; ZOT, LLC v Crown Assoc., 22 Misc 3d 133[A], 2009 NY Slip Op 50215[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Accordingly, respondents' motion is granted to the extent that the petition is dismissed against K.H., A.S., Amaro Abdelai, Sajda Bano, and [*3]S.H. pursuant to CPLR § 3211(a)(7). The clerk shall issue a judgment dismissing the petition against those respondents accordingly pursuant to CPLR § 411. As W.H. does not present a nonconclusory denial of personal service upon her, the motion to dismiss is denied solely as to her (cf. Marmon Realty Group, LLC v Khalil, 72 Misc 3d 136[A], 2021 NY Slip Op 50733[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

In the alternative, respondents seek to join 204 West 55 Street LLC, the owner of the subject building, to this proceeding pursuant to CPLR § 401 and/or Civil Court Act § 110(d). Petitioner opposes the motion to join and argues that 204 West 55 Street LLC is not a necessary party in this proceeding.

Under the relevant language in CPLR § 401, "[a]fter a proceeding is commenced, no party shall be joined or impleaded and no third-party practice or intervention shall be allowed, except by leave of court." Civil Court Act § 110(d) provides, in relevant part, "the court, on its own motion, may join any other person or city department as a party in order to effectuate proper housing maintenance standards and to promote the public interest." While this proceeding does not involve the effectuation of proper housing maintenance standards, the question is whether joinder here promotes the public interest. Respondents cite to Creagh v Stilwell, 128 Misc 2d 213 [Civ Ct, NY County 1985], which permitted joinder of a building owner in a proceeding brought by prime tenant against a sublessee. The respondent in Creagh raised a defense of illusory tenancy and the court held that "in order to provide complete relief in this one proceeding, in the interests of justice and to promote judicial economy, [it] will permit joinder of the owner of the building." (128 Misc 3d at 215). Respondents, in making their request for joinder, also attempt to assert an illusory tenancy claim as against the building owner, 204 West 55 Street LLC.

An illusory tenancy "is defined generally as a residential leasehold created in a person who does not occupy the premises for his or her own residential use and subleases it for profit, not because of necessity or other legally cognizable reason." (Matter of Badem Bldgs. v Abrams, 70 NY2d 45, 52-53 [1987]). In the context of rent stabilization, profiteering by the prime tenant is a central component of an illusory tenancy (see Sapp v Clark Wilson, Inc., 206 AD3d 1014 [2d Dept 2022]; Matter of 333 E 49th Partnership, LP v New York State Div. of Hous. & Community Renewal, 165 AD3d 93 [1st Dept 2018]).^[FN2] Here, respondents make no assertion that petitioner had a sublease agreement with them or overcharged them; indeed, there is no allegation that respondents even paid rent to petitioner. Thus, the court does not find that respondents have a viable illusory tenancy claim, at least as pleaded herein, against 204 West 55 LLC.

To the extent that respondents seek to join 204 West 55 LLC to claim succession to petitioner's rent-stabilized tenancy, the court finds that any determination of succession is premature at this juncture. The proceeding has now been dismissed against all but one of the respondents, and an adjudication of petitioner's claims against the remaining respondent, W.H., must necessarily precede any issue of succession. Moreover, a succession determination in these circumstances (i.e. where there is no allegation of non-renewal or vacatur of the rent-stabilized [*4]tenant originating from the landlord) would necessarily require recourse to declaratory relief. The court lacks the authority to grant declaratory relief in a summary eviction proceeding (Jones v Gianferante, 305 NY 135, 139 [1953]; Winthrop Realty, LLC v Menal, 21 Misc 3d 141[A], 2008 NY Slip Op 52383[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Finally, while respondents suggest that 204 West 55 LLC possesses information regarding their past attempts to transfer petitioner's lease to them, joinder is not necessary to procure this information. Respondents retain the ability to serve trial subpoenas upon officers or agents of the owner.

For each of these reasons, respondents' alternative motion to join 204 West 55 LLC is denied. This proceeding will be restored for all purposes, including trial transfer, on August 15, 2025 at 9:30 AM in Part D, Room 524.

This Decision/Order will be filed to NYSCEF.