Appeal from an order of the City Court of White Plains, Westchester County (Brian Hansbury, J.), dated September 28, 2011.
Stepping Stones Assoc. v Garcia
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 15, 2013
PRESENT: IANNACCI, J.P., MARANO and TOLBERT, JJ
The order, insofar as appealed from, denied a motion by tenant Maria Garcia to vacate a default final judgment and warrant in a nonpayment summary proceeding.
ORDERED that so much of the appeal as was taken by tenant Javier Garcia is dismissed, as that tenant is not aggrieved by the order, which determined a motion by tenant Maria Garcia (see CPLR 5511; Rinaldi v Evenflo Co., Inc., 62 AD3d 856 ); and it is further,
ORDERED that, on the court's own motion, so much of the notice of appeal as is by tenant Maria Garcia from the portion of the order that denied her motion to vacate a default final judgment and warrant is treated as an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CCA 1702 [c]); and it is further,
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of the motion by tenant Maria Garcia seeking to vacate the warrant is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.
In this nonpayment proceeding, after a final judgment of possession had been entered upon tenants' default and a warrant issued, Maria Garcia (tenant) submitted an order to show cause seeking to vacate the final judgment and warrant, asserting that she had not appeared in court because her husband, Javier Garcia, had received the papers and had not told her about them; that she had money orders totaling $2,547.36, which was enough to pay all the arrears; that she had lived in the apartment for 20 years; and that she has three children, all of whom attended local schools. The order to show cause was not served, but tenant's application, and landlord's opposition thereto, were orally argued after the City Court directed the parties to appear. Following oral argument, the City Court denied the motion.
In our view, tenant did not establish the existence of a meritorious defense to the proceeding, such as payment, and thus did not establish a basis to vacate the default final judgment (see CPLR 5015 [a] ; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 ). However, tenant showed that she had all the arrears due, which arrears were subsequently deposited into court pursuant to an order of this court, and that she did not pay the arrears prior to the issuance of the warrant because she was unaware of the proceeding. In these circumstances, tenant showed good cause to vacate the warrant and, thus, she is entitled to possession of the premises (RPAPL 749 ; see Harvey 1390 LLC v Bodenheim, 96 AD3d 664 ). We modify the order, insofar as appealed from, accordingly. Iannacci, J.P., Marano and Tolbert, JJ., concur. Decision Date: April 15, 2013
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