Opinion
2007-1766 W C.
Decided on January 8, 2009.
Appeal from an order of the City Court of New Rochelle, Westchester County (John P. Colangelo, J.), dated September 13, 2007. The order denied a motion by tenant Lorraine Munroe seeking to vacate so much of a final judgment entered April 2, 1996 as was against her.
Order reversed without costs and matter remanded for a determination de novo, following a hearing, of tenant Lorraine Munroe's motion to vacate so much of the final judgment as was against her.
PRESENT: RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ.
This nonpayment summary proceeding was commenced in March 1996 against two respondents. On April 2, 1996, the court below entered a final judgment, marked "on consent," awarding landlord $3,290 as against both respondents. Eleven years later, after her income was garnished, Lorraine Munroe (tenant) moved to vacate so much of the final judgment as was against her, asserting that she had moved out of the premises prior to the date the petition and notice of petition were allegedly served and that she had had "no idea" she was supposed to come to court. In opposition, landlord averred that tenant had personally appeared on the return date and had consented to entry of the judgment. Without holding a hearing, the City Court judge, who was not the judge who had entered the judgment, found that tenant had appeared on the return date and consented to the entry of the judgment.
In our view, it was error for the court to make a finding as to whether tenant had appeared and consented to entry of the judgment without affording tenant a hearing on the issue. While the judgment recites that it was "on consent," it is ambiguous because it does not state which of the respondents, or whether both, appeared and consented to the judgment. In view of tenant's denial that she was present, a hearing should have been held to test the credibility of the parties' competing claims. Accordingly, the order denying tenant's motion is reversed and the matter remanded for a determination de novo of the motion following a hearing. At the hearing, the court shall consider all the relevant factors bearing upon the parties' credibility. We note that tenant has acknowledged that when she left the apartment in 1996 the last two months' rent had not been paid.
We further note that, should it be found after a hearing that tenant did not appear, the petition must be dismissed because the affidavit of service is facially defective. The affidavit alleges no prior attempts before the petition and notice of petition were allegedly served by conspicuous place service at 4:25 P.M. on March 26, 1996 ( see Brooklyn Hgts. Realty Co. v Gliwa, 92 AD2d 602).
Rudolph, P.J., Molia and Scheinkman, JJ., concur.