Opinion
117386/2002.
Decided July 18, 2005.
Defendant Nancy Heller moves, by order to show cause, for an order, pursuant to CPLR 5015, (1) vacating the Order and Judgment of Default entered against her in March 2004, (2) vacating the money judgment entered against her in July 2004, in the amount of $62,887.86, and (3) setting aside defendant's eviction.
Background
Plaintiff is the owner of a cooperative residential apartment building. Defendant was a shareholder and lessee of an apartment in the plaintiff's building. Plaintiff alleges that defendant routinely engaged in disruptive and disturbing behavior against other residents in the building. Defendant allegedly yelled obscenities at tenants and employees of the building, repeatedly slammed doors, banged on walls, rang neighbors' doorbells, and engaged in other actions that allegedly constituted a nuisance. As a result of this alleged behavior, on March 21, 2002, the plaintiff's Board of Directors determined, upon a three-fourth vote, that defendant's tenancy was undesirable, and that, pursuant to Article III, Paragraph First (g) of the Proprietary Lease, defendant's lease should be terminated. Defendant alleges that she received no notice of the Board's Special Meeting, and thus, was not present to defend herself. Thereafter, by notice dated April 17, 2002, the Board terminated defendant's lease with the Cooperative, effective May 31, 2002.
On August 2, 2002, plaintiff commenced this action against defendant seeking to evict her from the apartment, and requiring her to sell her shares based upon her alleged inappropriate conduct. On September 18, 2002, defendant, represented by the firm of Fishman Neil, filed a verified answer. In October 2002, plaintiff moved, by order to show cause, for a preliminary injunction to restrain defendant's alleged conduct, which this court granted. Defendant filed opposition to that order to show cause. In November 2002, defendant retained new counsel, David Frazer.
In January 2003, defendant moved for summary judgment dismissing the complaint, which this court denied on the grounds that the complaint stated a cause of action. On April 23, 2003, David Frazer filed a motion to withdraw as defendant's counsel. Defendant claims that these were the last papers she received in regards to this action.
In June 2003, plaintiff filed a motion for summary judgment, which was granted on default by this court on November 20, 2003. Defendant claims that she did not receive copies of these papers. In March 2004, the Default Judgment with Notice of Entry was entered in plaintiff's favor. Defendant claims she did not receive notice of the Default Judgment. In April 2004, defendant allegedly left for France until October 2004.
In June 2004, an inquest was held before JHO Ira Gammerman, in which he issued a money judgment in favor of plaintiff for unpaid maintenance and other expenses owed by defendant. This money judgment was filed on July 27, 2004.
In October 2004, when defendant allegedly returned from France, she was denied access to the building. Defendant alleges it was at that time in which she first found out about the judgments entered against her. On March 23, 2005, defendant brought this order to show cause, pursuant to CPLR 5015, for an order (1) vacating the Order and Judgment of Default entered against her in March 2004, (2) vacating the money judgment entered against her in July 2004, in the amount of $62,887.86, and (3) setting aside her eviction.
Analysis
On application to vacate a default, the defendant must show a reasonable excuse for the default and a meritorious defense. See Barrister Assocs. v. Belloff, 277 AD2d 335 (2nd Dept 2000); Du-Art Film Labs. v. Wharton Intl. Films, 91 AD2d 572 (1st Dept 1982). As an excuse for her default, defendant claims that she never received notice of the plaintiff's June 2003 order to show cause, which was allegedly mailed to her apartment. She asserts that plaintiff and its attorneys were aware that defendant had a post office box address, as well as her apartment address, where she preferred to receive mail and which she checked often, but that plaintiff failed to inform the court of such when it brought its order to show cause. Thus, the court ordered that the order to show cause be sent by overnight mail to defendant's apartment, where defendant claims the mail would have been left with the doorman and/or outside of her apartment door, vulnerable to theft. Defendant argues that plaintiff was aware of the "more reliable" post office box because, when David Frazer withdrew as her counsel, plaintiff received a copy of the court order directing Frazer to serve defendant's apartment, as well as her post office box.
The plaintiff was not required to mail the order to show cause to defendant's post office box address. The plaintiff followed this court's order, dated June 19, 2003, directing plaintiff to mail the order to show cause to defendant's apartment address. Further, the Proprietary Lease states that:
"Any notice by the Lessor to the Lessee shall be deemed to duly given, and any demand by the Lessor upon the Lessee shall be deemed to have been duly made, if in writing and delivered personally enclosed in a postpaid envelope addressed to the Lessee at 47 East 87th Street, New York, New York 10021 or such other address as may be designated by the Lessee . . ."
Proprietary Lease, Article II ¶ 13.
Defendant has presented no evidence that she informed plaintiff that this post office box was to be used as a mailing address. The mere fact that defendant's former attorney knew of this post office box address, and designated the post office box and the apartment address in the order he presented to the court, does not create an obligation on the plaintiff to serve defendant at the post office box. The only evidence that defendant presented that designates a mailing address, other than her apartment, is her verified answer, in which defendant designated her former attorneys, Fishman Neil, as where all papers were to be served.
Plaintiff submits an affidavit of service as to the June 2003 order to show cause and the Order and Judgment with Notice of Entry mailed on March 23, 2004. The affidavits state that each was mailed to defendant's apartment, both of which were mailed before defendant allegedly went to France. Defendant fails to present evidence rebutting plaintiff's affidavits of service, nor does she present evidence showing that she had designated her post office box as the only place to receive papers, and made this known to plaintiff. Thus, for the foregoing reasons, defendant has not presented the court with a reasonable excuse for default.
Defendant also has not presented a meritorious defense. Defendant argues that the Cooperative must give the tenant-shareholder a full and fair opportunity to be heard, and to defend allegations of objectionable conduct. However, the plaintiff's Board of Directors were not required, under the Proprietary Lease signed by both parties, or by the By-Laws, to give defendant notice of the Board's Special Meeting. Therefore, the Board acted in accordance to the Proprietary Lease and the By-Laws.
Accordingly, it is
ORDERED that defendant's motion to vacate the Order and Judgment of Default entered against her in March 2004, to vacate the money judgment entered against her in July 2004, in the amount of $62,887.86, and to set aside her eviction is denied.
This constitutes the decision and order of the court.Dated: