Opinion
570142/14
11-21-2014
FEB Realty LLC, Petitioner-Landlord-Respondent, v. The Public Administrator for New York County as Administrator of the Estate of Shigeo Hashimoto, Respondent-Tenant, -and- Michiko Shibahara, "John Doe" and/or "Jane Doe, Respondent-Appellant.
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
Respondent Michiko Shibahara appeals from an order of the Civil Court of the City of New York, New York County (Brenda S. Spears, J.), dated February 5, 2014, which denied her motion to vacate a default final judgment issued against her in a holdover summary proceeding.
Per Curiam.
Order (Brenda S. Spears, J.), dated February 5, 2014, reversed, with $10 costs, motion granted, default final judgment vacated, and matter remanded to Civil Court for further proceedings on the holdover petition.
Considering the strong policy favoring resolution of cases on the merits (see Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411. 413—414 [2011]), we favorably exercise our discretion to relieve respondent Michiko Shibahara of the default final judgment entered in this holdover summary proceeding. Respondent demonstrated that her failure to oppose petitioner's motion for summary judgment was not wilful or deliberate (see Berardo v Guillet, 86 AD3d 459 [2011]), but rather the result of her (now former) counsel's misguided expectation that his request to adjourn the return date of petitioner's motion would be granted (see Mejia v Ramos, 113 AD3d 429 [2014]). Respondent also asserted a facially meritorious family member succession defense, submitting proof tending to support her claim that she resided in the stabilized apartment here at issue with her (now deceased) husband, the tenant of record. For purposes of vacating the default possessory judgment, the stipulation entered into by respondent in a prior eviction proceeding brought by landlord to recover possession of a separate apartment in the same building should not be read so broadly as to negate respondent's otherwise sufficient showing of a colorably meritorious succession claim relating to the subject apartment.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: November 21, 2014