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Broadway & Berry Associates v. Luisa Westerband

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


May 12, 2011

BROADWAY & BERRY ASSOCIATES,
RESPONDENT,
v.
LUISA WESTERBAND,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Marcia J. Sikowitz, J.), dated February 19, 2010. The order denied tenant's motion to vacate a default final judgment in a nonpayment summary proceeding.

Broadway & Berry Assoc. v Westerband

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 12, 2011

PRESENT: PESCE, P.J., WESTON and GOLIA, JJ.

ORDERED that the order is affirmed, without costs.

In this nonpayment proceeding, tenant moved to vacate a default final judgment that had been entered against her, awarding landlord possession of residential premises and arrears. In support of her motion tenant asserted, among other things, that the rent sought is not correct and that landlord was overcharging her. In opposition to the motion, landlord submitted, among other exhibits, an order of the Division of Housing and Community Renewal finding that "there is nothing in the applicable rent control laws and regulations which precludes establishing an MBR [maximum base rent] lower than the maximum collectible rent." Thus, landlord established that it was permitted to charge a maximum collectible rent that was higher than the MBR. Consequently, tenant failed to demonstrate a meritorious defense to the proceeding, as is required in order to vacate a default judgment pursuant to CPLR 5015 (a) (1) (see Eugene D. Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; HSBC Bank, USA v Dammond, 59 AD3d 679 [2009]; Matter of Macias v Motor Veh. Acc. Indem. Corp., 10 AD3d 396 [2004]). Under the circumstances, we conclude that the Civil Court's denial of tenant's motion did not constitute an improvident exercise of discretion. Accordingly, the order is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.

Decision Date: May 12, 2011

20110512

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