Opinion
570166/04.
Decided December 15, 2004.
Tenant appeals 1) from an order of the Civil Court, Bronx County, dated January 7, 2004 (Howard Malatzky, J.) which granted landlord's motion for summary judgment on default in a holdover summary proceeding, and 2) from an order of the same court and Judge dated February 24, 2004, which denied tenant's motion to renew or reargue the aforesaid order of January 7, 2004.
Order dated February 24, 2004 (Howard Malatzky, J.) reversed, without costs, tenant's motion is deemed one to vacate his default on the prior summary judgment motion and, so considered, tenant's motion is granted.
Appeal from order entered January 7, 2004 upon tenant's default (Howard Malatzky, J.) dismissed, without costs, as nonappealable ( see CPLR 5511; J T T Air Conditioning Corp. v. BG Natl. P H Inc., 293 AD2d 429).
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. PHYLLIS GANGEL-JACOB, Justices.
By its January 7, 2004 order, Civil Court granted landlord's motion for summary judgment based upon the absence of opposition papers from the tenant. The tenant's motion to "renew or reargue" that order is properly deemed one to vacate his default in opposing the summary judgment motion ( see Matter of Gavrin, 294 AD2d 185; Solovay v. Nicola Paone Corp., 219 AD2d 462). So viewed, tenant's vacatur motion, expeditiously made within several weeks of his default, should have been granted upon tenant's showing of a reasonable excuse for the default and a meritorious defense to the holdover petition ( see Consortium Consulting Group v. Tsai, 2 AD3d 177). The record satisfactorily shows that tenant's failure to oppose the landlord's summary judgment motion was due to what the motion court described as an "administrative" or "bureaucratic foul up" stemming from the tenant's (timely) filing of his opposition papers in the wrong location in the courthouse. Tenant also demonstrated the possible existence of both procedural and substantive defenses to the landlord's possessory claim, through his personal affidavit alleging the landlord's noncompliance with the statutory "termination of assistance" requirements applicable to this tenancy subject to the Shelter Plus Care program ( see 42 USC § 11403 et seq.; 24 CFR 582.320) and setting forth sworn, detailed denials of the income recertification and other tenancy violations alleged in the holdover petition.
This constitutes the decision and order of the court.