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270-274 8th Avenue, LLC v. Heidi Bakal

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


March 6, 2012

270-274 8TH AVENUE, LLC,
RESPONDENT,
v.
HEIDI BAKAL,
APPELLANT.

Appeal from a final judgment of the District Court of Nassau County, First District (Scott Fairgrieve, J.), entered March 9, 2011.

270-274 8th Ave., LLC v Bakal

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 6, 2012

PRESENT: LaCAVA, J.P., MOLIA and IANNACCI, JJ

The final judgment awarded landlord possession in a holdover summary proceeding. The appeal from the final judgment brings up for review an order of the same court dated May 28, 2010 which denied tenant's motion to vacate a default final judgment entered December 4, 2008.

ORDERED that the final judgment entered March 9, 2011 is reversed, without costs, the order dated May 28, 2010 is vacated, tenant's motion to vacate the default final judgment entered December 4, 2008 is granted, and the matter is remitted to the District Court for all further proceedings.

Upon a review of the record in this holdover summary proceeding, we find that the District Court, in its order dated May 28, 2010, improvidently exercised its discretion in denying tenant's motion to vacate the December 4, 2008 default final judgment, which had been entered against tenant upon her failure to appear in the proceeding, as tenant had demonstrated a reasonable excuse for the default and a potentially meritorious defense to the proceeding (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). We note that, while tenant's lease expired on August 31, 2008 and she did not seek to sign the renewal documents until the end of September 2008, equity may, in appropriate circumstances, relieve a tenant of an inadvertent failure timely to sign a renewal lease (cf. Matter of 210 Realty Assoc. v O'Connor, 302 AD2d 396 [2003]; Neufville v Walton-Steed, 30 Misc 3d 133[A], 2011 NY Slip Op 50051[U] [App Term, 9th & 10th Jud Dists 2011]; 199 Apt. Assoc., J.V. v Stafford, 8 Misc 3d 128[A], 2005 NY Slip Op 50962[U] [App Term, 9th & 10th Jud Dists 2005]), particularly where, as here, there had been a prior history of landlord's acceptance of late renewals, and of deemed renewals.

Accordingly, the final judgment entered March 9, 2011, pursuant to the order dated May 28, 2010 is reversed, the order dated May 28, 2010 is vacated, tenant's motion to vacate the default final judgment entered December 4, 2008 is granted, and the matter is remitted to the District Court for all further proceedings.

LaCava, J.P., Molia and Iannacci, JJ., concur. Decision Date: March 06, 2012

20120306

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