Opinion
2008-40 K C.
Decided February 13, 2009.
Appeal from an order of the Civil Court of the City of New York, Kings County (Gary Franklin Marton, J.), dated September 29, 2006. The order, insofar as appealed from as limited by the brief, denied landlord's motion to restore the proceeding to the calendar.
Order, insofar as appealed from, reversed without costs, and landlord's motion to restore the proceeding to the calendar granted on condition that landlord's attorney pay tenant the sum of $250 within 30 days of the date of this decision and order.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
In this owner-occupancy holdover proceeding ( see Rent Stabilization Code [ 9 NYCRR] § 2524.4 [a]), landlord appeals from an order denying his motion to restore the proceeding to the calendar. After a stay of trial in this proceeding had been lifted, the parties met with the court to set a date to resume the trial. At that conference, landlord's counsel stated that landlord would be presenting a rebuttal witness. Both parties assured the court that they would be able to proceed on the date picked, and the court issued a written order confirming the trial date and stating that the parties "must be prepared to finish the trial on that day."
On the date set for trial, neither landlord nor landlord's counsel timely arrived, and the court struck the proceeding from the calendar. Landlord's counsel subsequently arrived and explained that landlord's rebuttal witness would not be able to appear that day due to an unavoidable scheduling conflict. Two days earlier, landlord's counsel had attempted to file a motion seeking to adjourn the trial date, but the court clerk would not accept the motion for filing.
Thereafter, landlord timely moved to restore the proceeding to the calendar pursuant to 22 NYCRR 208.14 (c). In an affirmation in support of the motion, landlord's counsel conceded that she had been aware for approximately three weeks that the rebuttal witness would not be able to appear, but stated that she was unable to move for a stay earlier due to personal business. The court denied the motion. We reverse.
The medical evidence sought to be presented by landlord's rebuttal witness was crucial to the issue of landlord's good faith intention to use the subject premises as a primary residence. Given the importance of the evidence in question, landlord's timely motion to restore the proceeding to the calendar should have been granted. We note that the court below had alternative remedies, including sanctions, if it believed them warranted, to deal with landlord's untimely notice to the court and to tenant of landlord's need to postpone the trial.
Accordingly, the order, insofar as appealed from, is reversed and landlord's motion to restore the proceeding to the calendar is granted on condition landlord's attorney pay tenant the sum of $250 within 30 days of the date of this decision and order.
Pesce, P.J., Golia and Rios, JJ., concur.