Appeal from an order of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered May 19, 2011.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.
PRESENT: WESTON, J.P., PESCE and ALIOTTA, JJ
The order denied tenant's motion to vacate a default final judgment in a nonpayment summary proceeding.
ORDERED that the order is reversed, without costs, tenant's motion to vacate the default final judgment is granted, and the petition is dismissed.
Landlord commenced this nonpayment proceeding in the commercial landlord-tenant part, alleging that the premises was used for commercial purposes. After tenant's counsel filed a notice of appearance and a demand "that a copy of the complaint and all papers be served" upon him, a final judgment was entered, upon tenant's failure to answer, awarding possession to landlord. Thereafter, tenant moved to vacate the default final judgment, asserting, among other things, that the premises is in a private two-family house, that she had purchased the residential family daycare facility from landlord, and that she resided therein as required by the applicable New York State regulations. In opposition, landlord claimed, among other things, that she "[does] not know if [tenant] resides there" but she does know that tenant runs a day-care center there. The Civil Court denied tenant's motion, finding that tenant had failed to show an excuse for the default.
As landlord, who sold tenant the daycare operation, has not denied knowing that the premises is in a residential two-family house, and has admitted that the premises is used for a daycare center and, in her brief on appeal, that the operation of this daycare facility requires that someone reside in the premises (see 18 NYCRR 413.2 [j]), landlord is charged with knowledge of the residential nature of the occupancy. In light of the misrepresentation in the petition as to the nature of the occupancy (see CPLR 5015 [a] ) and the strong legislative policy that all summary proceedings to recover residential premises be commenced in the Housing Part (CCA 110 [a] ; see L 1972, ch 982, § 1, as amended by L 1978, ch 310, § 4; Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.42 [a]), the default final judgment should have been vacated and the petition dismissed (see U.B.O. Realty Corp. v Mollica, 257 AD2d 460 ; 379 E. 10th St. LLC v Miller, 23 Misc 3d 137[A], 2009 NY Slip Op 50864[U] [App Term, 1st Dept 2009]; Freeman St. Props., LLC v Coirolo, 17 Misc 3d 137[A], 2007 NY Slip Op 52299[U] [App Term, 2d & 11th Jud Dists 2007]).
Pesce and Aliotta, JJ., concur.
Weston, J.P., dissents in a separate memorandum.
Weston, J.P., dissents and votes to affirm the order in the following memorandum:
In my opinion, the Civil Court correctly concluded that tenant had failed to demonstrate a reasonable excuse for her failure to answer. Accordingly, I respectfully dissent and vote to affirm the order denying ...