Opinion
2005-1476 Q C.
Decided March 27, 2006.
Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered September 14, 2005. The order denied plaintiff's motion for the entry of a default judgment and granted defendant's cross motion to open its default in answering the complaint and for leave to serve and file an answer.
Order reversed without costs, plaintiff's motion for entry of a default judgment granted, defendant's cross motion to open its default denied and matter remanded to the court below for an inquest.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ
Plaintiff commenced this action to recover rent overcharges and the interest on his security deposit for the rent-stabilized apartment he has rented from defendant since October 1998. In September 2005, plaintiff moved for the entry of a default judgment, asserting that defendant had not appeared and answered although the summons and complaint had been served upon the Secretary of State on June 3, 2005. Defendant crossed-moved for leave to serve and file an answer, asserting as a reasonable excuse that it was unaware of the lawsuit until it received the summons and complaint in August 2005. Thereafter, the court below denied plaintiff's motion and granted defendant's cross motion "to vacate a default judgment" and granted defendant leave to serve and file an answer. The court found that defendant demonstrated an excusable default and a meritorious defense.
A review of the record on appeal supports the lower court's determination that defendant proffered a reasonable excuse for its default. However, defendant failed to show a meritorious defense to the action ( see Juseinoski v. Board of Educ. of City of N.Y., 15 AD3d 353, 356-357). In moving for entry of a default judgment, plaintiff tenant averred that he entered into an oral agreement with defendant to lease the rent-stabilized apartment in 1998 and it is undisputed that he has resided in said apartment since then, and paid his rent directly to defendant during this time period. Defendant's principal asserted that defendant issued a "renewal" lease for the premises to a person named Nirlun in 2001, for a monthly rent of $1,001.47 and that, as an accommodation, plaintiff was allowed to reside in the apartment and pay a lesser amount in rent. However, defendant did not claim that Nirlun ever resided in the apartment, and the documentary evidence submitted by plaintiff indicates that a vacancy, not a renewal lease was executed in 2001. Inasmuch as defendant failed to show that Nirlun's alleged tenancy was anything but illusory, its defense, based solely on said alleged tenancy with Nirlun, lacks merit. Moreover, defendant did not address plaintiff's claim for interest on his security deposit.
It is noted that a defendant who defaults in appearing only concedes liability, not the amount of damages, and may, at an inquest, offer proof in mitigation of damages ( see Amusement Business Underwriters v. American Intl. Group, 66 NY2d 878, 880; McClelland v. Climax Hosiery Mills, 252 NY 347, 351). In view of the foregoing, the matter should be remanded for an inquest on the issue of damages.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.