16 Marble Hill LLCv.Matos

Appellate Term of the Supreme Court of New York, First DepartmentAug 9, 2010
570320/10 (N.Y. Misc. 2010)
570320/102010 N.Y. Slip Op. 51404


Decided August 9, 2010.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Joseph E. Capella, J.), dated September 11, 2009, which granted tenant's motion to vacate a default judgment and, sua sponte, dismissed the petition in this nonpayment summary proceeding.

PRESENT McKeon, P.J., Shulman, Hunter, Jr., JJ.

Order (Joseph E. Capella, J.), dated September 11, 2009, modified, petition reinstated, and matter remanded for further proceedings; as modified, order affirmed, without costs.

Civil Court providently exercised its discretion in granting tenant's motion to vacate the default judgment and warrant of eviction in this nonpayment summary proceeding. Tenant offered a reasonable excuse for her unintended default — she arrived approximately 30 minutes late for the court appearance at which she was marked in default — and demonstrated potentially meritorious defenses, including those raised by tenant's challenge to the issue of service of the notice of petition and petition. In this regard, we note the absence from the record on appeal of an affidavit of service evincing service of the rent demand or the notice of petition and petition. Moreover, in moving to vacate her default, tenant deposited court-ordered arrears with the court. However, the nonpayment petition should not have been dismissed, tenant having failed to seek dismissal of the petition or establish her entitlement to such relief. Therefore, we reinstate the petition and remand the matter to Civil Court for further proceedings.