OPINION OF THE COURT
Whether a landlord, after commencing a nonpayment summary proceeding, but before issuance and execution of the warrant of eviction, learns of the existence and identity of a suboccupant tenant by acceptance of rent for five months and does not amend the petition or warrant before such execution, has wrongfully evicted such suboccupant tenant. An issue of first impression herein.
B. FACTS AND PROCEDURAL HISTORY
After trial, this court finds, in fаct and law, that petitioner, John E. Wilson, has sustained his burden of proof, by a fair preponderance of the credible evidence, and that hе has been wrongfully evicted from the subject premises, a portion of the 35th floor of 30 Broad Street, New York, New York.
Petitioner sublet a portion оf the 35th floor of 30 Broad Street from the named tenant, Murphy, Marseilles, Smith & Nam-mack (Murphy Marseilles), without the respondent landlord’s direct knowledge or written consent on February 1, 1997, when Murphy Marseilles’ lease with respondent was amended.
In October 1997, respondent, 30 Broad Street Associates, L.P., commеnced a nonpayment summary proceeding against Murphy Marseilles (NY County, L&T index No. 107089/97) listing several subtenants, but not specifically naming petitioner herein as a respondent therein. On November 17, 1997, respondent and Murphy Marseilles entered into a stipulation settling the above summary proceeding. Again, petitioner was neither named, nor referred to in, and did not sign said stipulation.
On and during December 15, 1997 through April 1998, petitioner tendered, and respondent accepted through its managing agent, Newmark & Company Real Estate, Inc., rent for the subject premises.
On February 2, 1998, respondent (landlord) and Murphy Marseilles entered into an amended stipulation in the abovе special proceeding which stated Murphy Marseilles had vacated the 35th floor. Once again, petitioner was not included in the stipulation even though respondent had been accepting rent from, as well as rectifying complaints by, petitioner since December 15, 1997, and clearly knew he was in possession of a portion of the 35th floor.
On March 19, 1998, City Marshal Robert J. Barsch executed a warrant of eviction issued in the abovе special proceeding
Petitioner commenced this special proceeding by order to show cause which was tried on July 28, 1998.
C. APPLICABLE LAW AND FINDINGS
A summary proceeding is entirely statutory requiring strict compliance tо give the court jurisdiction (Giannini v Stuart,
Where the party is unknown, it is well settled law that jurisdiction may be obtained by service upon a legally fictitious person “John Doe” or an entity “XYZ Corp.”, and the petition amended liberally, nunc pro tunc (Jackson v New York City Hous. Auth.,
D. CONCLUSION
In this instance, respondent initially did not know of petitionеr’s presence, occupancy or possession but learned his identity, by accepting rent, before the warrant was executed. In fact, respondent knew petitioner’s identity before the execution of the amended stipulation on February 2, 1998, because respondent had been аccepting rent for five months from him
When resрondent began accepting rent from petitioner after the stipulated date of surrender by Murphy Marseilles, it created a month-to-month tenаncy with petitioner and petitioner became a necessary party entitled to notice before his eviction. Respondent contеnds that no tenancy was created and to support this argument relies upon J.A.R. Mgt. Corp. v Foster (
Accordingly, because this court did not have personal jurisdiction over petitioner, the eviction of pеtitioner was unlawful and petitioner is entitled to recover damages under RPAPL 853, for his unlawful eviction from a portion of the 35th floor of 30 Broad Street, Nеw York, New York. In light of the fact respondent has relet the entire subject premises before the effective date of the temporary restraining order, removing and allegedly damaging its personalty, equipment and security business by termination of telecommunications to an innocent lease party who occupies the entire 35th flоor of 30 Broad Street, it would not be in the interest of justice, realistic practicality or equity to the innocent new tenant of the entire 35th floor for this court to restore petitioner to possession of