Opinion
570058/04.
Decided July 19, 2004.
Respondent appeals from an order of the Civil Court, New York County, dated December 29, 2003 (Peter M. Wendt, J.) denying his motion to vacate a judgment of possession entered on default in a holdover summary proceeding.
Order dated December 29, 2003 (Peter M. Wendt, J.) reversed, without costs, respondent's motion to vacate the default judgment is granted, and the proceeding is remanded to the Civil Court for immediate trial.
PRESENT: HON. WILLIAM J. DAVIS, J.P., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
Given the history of the proceeding, Civil Court understandably declined to grant a further adjournment upon being advised by respondent's attorneys that they had been discharged shortly before the scheduled trial date. No doubt it was disturbing to the court, as it is now to us, that this development should result in additional delay (see generally, J.C.S. Design Associates, Inc. v. Vinnik, 85 AD2d 572). However, our examination of the record satisfies us that respondent's actions were not motivated by an intent to deliberately default, but are attributable to misguided perceptions of his (former) attorneys, his adversary, and the court system. In light of respondent's age and infirmities, and his arguably meritorious claim of succession based upon a residence in the controlled premises with the deceased tenant for approximately 50 years, we favorably exercise our discretion so that this matter may be decided on its merits and not on default (see Picinic v. Seatrain Lines, Inc., 117 AD2d 504, 508). The respondent is cautioned that failure to proceed on the trial date, which shall be set expeditiously, will not be countenanced.
This constitutes the decision and order of the court.