Opinion
2002-1067 K C.
Decided December 3, 2003.
Appeal by tenant from so much of an order of the Civil Court, Kings County (G. Lebovits, J.), dated July 8, 2002, as granted his motion to vacate a default final judgment in a summary nonpayment proceeding only to the extent of conditionally staying the warrant of eviction.
Order unanimously affirmed without costs.
PRESENT: ARONIN, J.P., PATTERSON and GOLIA, JJ.
We find no basis to disturb the court's denial of tenant's motion, insofar as it sought to vacate the default final judgment, as tenant failed to assert a credible excuse for his nonappearance ( 32-05 Newton Ave. Assocs. v. Hailazopoulos, 168 Misc 2d 125, 127 [App Term, 2d 11th Jud Dists]). Moreover, most of tenant's claims to uncredited rent payments pertain to a period which was the subject of a prior nonpayment proceeding settled by stipulation in March 2001. Tenant never moved to vacate that stipulation and he may not now litigate the propriety of the sum settled therein as a defense to the instant petition. The record also does not support tenant's claim that landlord failed to credit an August 2001 rent payment. Accordingly, the order appealed from should be affirmed.