Opinion
2021-50593
06-25-2021
Hector Perez, Respondent, v. Glenmore Ave. Management, Inc., Appellant.
The Rosenfeld Law Office (Avi Rosenfeld of counsel), for appellant. Cooper, Paroff & Graham, P.C., for respondent (no brief filed).
Unpublished Opinion
The Rosenfeld Law Office (Avi Rosenfeld of counsel), for appellant.
Cooper, Paroff & Graham, P.C., for respondent (no brief filed).
PRESENT:: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Cheryl J. Gonzales, J.), entered October 25, 2018. The order, insofar as appealed from, denied the branch of a motion by Glenmore Ave. Management, Inc. seeking to vacate a final judgment of that court entered September 27, 2018 upon the failure of Glenmore Ave. Management, Inc. to appear and answer the petition in a summary proceeding brought pursuant to RPAPL 713 (10) and, upon such vacatur, to dismiss the petition.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of the motion by Glenmore Ave. Management, Inc. seeking to vacate the default final judgment and, upon such vacatur, to dismiss the petition is granted to the extent of vacating the default final judgment.
In September 2018, petitioner, Hector Perez, commenced this summary proceeding pursuant to RPAPL 713 (10), alleging that respondent, Glenmore Ave. Management, Inc. (Glenmore), had illegally evicted petitioner from the subject premises and seeking, among other things, to be restored to possession. Glenmore failed to answer or appear, and a final judgment was entered on September 27, 2018 awarding petitioner possession and directing Glenmore to restore petitioner to possession. By OSC filed in October 2018, Glenmore moved to, among other things, vacate the default final judgment pursuant to CPLR 5015 (a) (4) or, in the alternative, CPLR 5015 (a) (1) and, upon such vacatur, to dismiss the petition for lack of personal jurisdiction. By order entered October 25, 2018, the Civil Court denied Glenmore's motion.
Upon a review of the record, we find that Glenmore did not satisfy its burden of demonstrating a lack of personal jurisdiction so as to warrant the vacatur of the default final judgment (see CPLR 5015 [a] [4]) or the dismissal of the petition on that ground.
A movant seeking to vacate a default judgment based on an excusable default is required to demonstrate both that there was a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141 [1986]; Codoner v Bobby's Bus Co., Inc., 85 A.D.3d 843 [2011]). "The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court, and will not be disturbed if the record supports such determination" (Green Apple Mgt. Corp. v Aronis, 55 A.D.3d 669, 669 [2008]). Among the relevant factors to be considered when deciding whether there is a reasonable excuse for a default is the extent of the delay in answering (see Gately v Drummond, 161 A.D.3d 947 [2018]; Citicorp Trust Bank, FSB v Makkas, 127 A.D.3d 907 [2015]).
Under the particular circumstances presented, including that this proceeding was commenced in September of 2018, the default final judgment was entered on September 27, 2018, and Glenmore moved to vacate the default final judgment in October of 2018, we find that Glenmore demonstrated a reasonable excuse for its default and also demonstrated the existence of a potentially meritorious defense (see CPLR 5015 [a] [1]; Green Apple Mgt. Corp. v Aronis, 55 A.D.3d 669; Hodges v Sidial, 48 A.D.3d 633 [2008]). Thus, the Civil Court improvidently exercised its discretion in denying vacatur of the final judgment entered against Glenmore upon its default in appearing at trial. Moreover, vacatur is consistent with the strong public policy of resolving cases on their merits (see Fuentes v Virgil, 88 A.D.3d 643, 643 [2011]; Dimitriadis v Visiting Nurse Serv. of NY, 84 A.D.3d 1150 [2011]).
Accordingly, the order, insofar as appealed from, is reversed, and the branch of Glenmore's motion seeking to vacate the default final judgment and, upon such vacatur, to dismiss the petition is granted to the extent of vacating the default final judgment.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.