Opinion
2022-852 N C
12-21-2023
4720 AVENUE, INC., Appellant, v. HARLEY HOUSE, Respondent, et al., Undertenants.
ORDERED that the order is reversed, without costs, respondent's motion to vacate the final judgment entered September 2, 2022 is denied and the final judgment is reinstated.
Petitioner commenced this summary proceeding in May of 2022 pursuant to RPAPL 713 (3) after serving respondent with a 10-day notice to quit. Respondent appeared and answered, and petitioner moved for summary judgment. A final judgment awarding petitioner possession was entered by the District Court (William A. Hohauser, J.) on September 2, 2022 upon respondent's failure to appear in court on the August 12, 2022 return date of petitioner's motion.
On or about September 16, 2022, respondent moved by order to show cause to vacate the final judgment of possession. In support of the motion, respondent's counsel stated, among other things, that, due to his father falling ill at the end of July, and an ensuing trip to see his father in Greece from which he returned very late on August 11, 2022, counsel forgot about the return date of the motion on August 12, 2022. Counsel also asserted that the petition was defective as respondent did not enter into possession as a squatter, and that respondent was, at least, a tenant at will, which meant that service of a 30-day notice was required prior to the commencement of a summary proceeding. By order dated September 28, 2022, the District Court (Christopher J. Coschignano, J.) granted respondent's motion to vacate the final judgment. Petitioner appeals.
Pursuant to CPLR 5015 (a) (1), in order to vacate the final judgment, respondent was required to show both a reasonable excuse for his default and a potentially meritorious defense to the proceeding (see Allstate Ins. Co. v North Shore Univ. Hosp. , 163 AD3d 745 [2018] ). "Law office failure may qualify as a reasonable excuse for a party's default if the claim of such failure is supported by a credible" and detailed explanation of the default ( Maruf v E.B. Mgt. Props., LLC , 181 AD3d 670, 671 [2020] ). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the court (see Glukhman v Bay 49th St. Condominium, LLC , 100 AD3d 594 [2012] ). We find that respondent provided a reasonable excuse, as the law office failure here resulted from an isolated, inadvertent mistake, and not from repeated neglect (see Gutman v A to Z Holding Corp. , 91 AD3d 718 [2012] ).
Nevertheless, respondent has failed to offer a potentially meritorious defense to the proceeding. Respondent's counsel alleged that respondent entered into possession pursuant to a deed naming him as owner, and claimed that respondent was entitled to a 30-day notice, rather than the 10-day notice to quit that predicated this proceeding, as respondent is, at least, a tenant at will, which tenancy, pursuant to Real Property Law § 228, requires a 30-day notice.
When another enters upon land by permission of the owner for an indefinite period, even without the reservation of rent, he is, by implication of law, a tenant at will (see Larned v Hudson , 60 NY 102 [1875] ; Stauber v Antelo , 163 AD2d 246, 248 [1990] ; City of New York v Utsey , 185 Misc 2d 715 [App Term, 2d Dept, 2d & 11th Jud Dists 2000]). A tenancy at sufferance arises at common law when an occupant continues in possession after a possessory interest terminates and the occupant has no privity to the party entitled to possession (see Livingston v Tanner , 14 NY 64 [1856] ; City of New York v Utsey , 185 Misc 2d 715 ; Restatement of Property § 22 ). A trespass cannot "ripen into a tenancy at sufferance," but it is possible for an occupancy by a squatter or trespasser, where the occupancy is "subordinate, not adverse, to the title of the true owner," to "ripen into a tenancy at will" ( City of New York v Utsey , 185 Misc 2d at 717, 718 ). A 30-day notice is required to terminate both a tenancy at will and a tenancy by sufferance (see Real Property Law § 228 ).
Respondent has not supported his claims that he was entitled to a 30-day notice under any theory, as he did not submit an affidavit in this proceeding and his attorney did not provide any other factual basis for respondent's claims. In any event, it is undisputed that respondent's deed was vacated, by order entered June 20, 2019, upon his default in appearing in a Supreme Court action to vacate that deed, and respondent's counsel conceded that the Supreme Court vacated the deed on the ground that it was a forgery by respondent. While respondent takes the position that his deed was proper, he has not been successful in seeking to vacate his default in the Supreme Court action and we are bound by the vacatur of the deed ab initio as a forgery. As there is nothing in the record to indicate that respondent entered the premises with a possessory interest other than the claimed deed or that any event occurred between respondent's entry and the service of the 10-day notice that created a tenancy at will (see Kerrains v People , 60 NY 221, 225 [1875] ; Sawicka v Schwimmer , 187 AD3d 957 [2020] ; Fisher v Queens Park Realty Corp. , 41 AD2d 547 [1973] ; City of New York v Utsey , 185 Misc 2d 715 ), respondent has not demonstrated that he has a potentially meritorious defense to this proceeding.
Accordingly, the order is reversed, respondent's motion to vacate the final judgment entered September 2, 2022 is denied and the final judgment is reinstated.
GARGUILO, P.J., EMERSON and McCORMACK, JJ., concur.