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Karma Properties LLC v. Landlord

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT Appellate Term, First Department


May 26, 2011

KARMA PROPERTIES LLC,
PETITIONER
v.
LANDLORD RESPONDENT, JING ZHAN LIN D/B/A TOP NOTCH CUTTING A/K/A TOP NOTCH CUTTING, INC. AND NEW TOP NOTCH CUTTING INC.,
RESPONDENT-TENANT-APPELLANT.

Per curiam.

Karma Props. LLC v Jing Zhan Lin

2011 NY Slip Op 50928(U)

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This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2011

PRESENT: Hunter, Jr., J.P., Schoenfeld, Torres, JJ

Respondent Jing Zhan Lin appeals (1) from an order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), dated November 13, 2007, which denied his motion to vacate that portion of a default judgment entered March 26, 2007, awarding petitioner a recovery of rent arrears in the principal sum of $50,056.66 as against Lin in his individual capacity, and (2) from two prior orders (same court and Judge), each dated March 26, 2007, which granted petitioner's motion for leave to enter the default judgment and denied respondent Lin's cross motion to dismiss the petition in a nonpayment summary proceeding.

Order (Manuel J. Mendez, J.), dated March 26, 2007, modified by vacating that portion of the default judgment entered that date, which awarded petitioner rent arrears in the principal sum of $50,056.66 as against respondent Jing Zhan Lin, individually, and the answer is deemed served nunc pro tunc; as modified, order affirmed, without costs. Order (same court and Judge), dated March 26, 2007, which denied respondent's cross motion to dismiss the nonpayment petition, affirmed, without costs. Appeal from order (same court and Judge), dated November 13, 2007, dismissed, without costs, as academic.

In light of the brief four-day delay in answering the instant commercial nonpayment petition, the absence of any discernable prejudice to petitioner, and the strong public policy favoring resolution of cases on their merits, respondent Jing Zhan Lin's motion to vacate his default in answering should have been granted, and his answer should have been deemed timely served nunc pro tunc (see CPLR 2005; 3012[d]; Arrington v Bronx Jean Co., 76 AD3d 461, 462 [2010]; McCord v American Golf, Inc., 245 AD2d 349, 350 [1997]; Walter v Rockland Armor & Metal Corp., 140 AD2d 335 [1988]).

We need not, and do not, address the merits of the affidavit submitted by Lin in opposing petitioner's motion for the entry of a default judgment, since an affidavit of merit is not required where a default order or judgment has not yet been entered (see Arrington v Bronx Jean Co., Inc., 76 AD3d at 462; Lamar v City of New York, 68 AD3d 449 [2009]). Under the extant circumstances, the entry of a default judgment as against Lin in his individual capacity, was unwarranted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: May 26, 2011

20110526

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