SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
August 4, 2011
GOOD REALTY, LLC, RESPONDENT,
YECHESKEL WEINGARTEN, APPELLANT, -AND- GITY BIRNBAUM, TENANT.
Appeal from an order of the Civil Court of the City of New York, Kings County (Anthony J. Fiorella, Jr., J.), dated August 24, 2010.
Good Realty, LLC v Weingarten
Decided on August 4, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ
The order, insofar as appealed from, granted a motion by tenant Yecheskel Weingarten to vacate a default final judgment only to the extent of staying execution of the warrant until September 2, 2010 for payment of arrears of $6,345.12, and otherwise denied the motion.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this nonpayment proceeding, Yecheskel Weingarten (appellant) failed to appear and answer, and a final judgment awarding landlord possession was entered against him on default on June 9, 2010. A warrant of eviction was issued on June 11, 2010. Appellant thereafter moved to vacate the default final judgment, alleging generally that the amount sought by landlord was incorrect and that landlord did not make necessary repairs to the subject apartment. Appellant stated that he had initially failed to appear in the proceeding because he had "tried to work it out with landlord himself." On July 29, 2010, the Civil Court denied appellant's motion after he had failed to appear on the motion's return date.
Appellant then again moved to vacate the default final judgment, explaining why he had failed to appear on the prior motion's return date but failing to assert a reasonable excuse for his initial default and meritorious defense to the underlying proceeding. The Civil Court granted appellant's motion only to the extent of staying execution of the warrant until September 2, 2010 for payment of arrears of $6,345.12.
In order to vacate a default final judgment on the ground of excusable default, a tenant is required to establish both a reasonable excuse for his default and a meritorious defense to the proceeding (see CPLR 5015 [a] ; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 ; Mora v Scarpitta, 52 AD3d 663 ; 5576 Realty, LLC v Bourdeau, 20 Misc 3d 139[A], 2008 NY Slip Op 51571[U] [App Term, 2d & 11th Jud Dists 2008]).In this case, appellant did not establish a reasonable excuse for his original nonappearance. Although appellant alleged that he had "tried to work it out with landlord himself," he never asserted that landlord had agreed to discontinue the nonpayment proceeding or to extend the time to answer. Moreover, appellant failed to demonstrate a potentially meritorious defense because he merely set forth generalized and conclusory allegations to the effect that landlord had refused to make necessary repairs to the subject apartment and failed to specify why landlord's calculation of the amount of rent arrears was incorrect (see Peacock v Kalikow, 239 AD2d 188, 190 ; Schiavetta v McKeon, 190 AD2d 724 ). Accordingly, we find that the Civil Court did not improvidently exercise its discretion in refusing to vacate the default final judgment.
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: August 04, 2011
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