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Winthrop Realty, LLC v. Maloney

Appellate Term of the Supreme Court of New York, Second Department
Dec 8, 2004
2004 N.Y. Slip Op. 51545 (N.Y. App. Term 2004)

Opinion

2004-55 K C.

Decided December 8, 2004.

Appeal by tenant Sandra Maloney from an order of the Civil Court, Kings County (A. Alterman, J.), entered January 8, 2004, denying her motion to vacate a final judgment of possession entered upon her default.

Order unanimously reversed without costs, tenant Sandra Maloney's motion to vacate the default final judgment entered against her granted and matter remanded to the court below for all further proceedings.

PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.


Tenant Sandra Maloney established a reasonable excuse for her default, and made sufficient factual allegations to constitute a meritorious defense to the proceeding (CPLR 5015), in that the predicate written rent demand (RPAPL 711) does not appear to have been served in accordance with RPAPL 735 ( see Matter of Salvatore Catherine Pepe v. Miller Miller Consulting Actuaries, 221 AD2d 545; see generally Eight Assoc. v. Hynes, 65 NY2d 739), tenant at all times denied that the rent sought in the petition remained due, and there is evidence of payment of the rent sought in the petition prior to entry of the judgment. In the circumstances presented herein, tenant should be permitted to present her defenses at trial.


Summaries of

Winthrop Realty, LLC v. Maloney

Appellate Term of the Supreme Court of New York, Second Department
Dec 8, 2004
2004 N.Y. Slip Op. 51545 (N.Y. App. Term 2004)
Case details for

Winthrop Realty, LLC v. Maloney

Case Details

Full title:WINTHROP REALTY, LLC, Respondent, v. SANDRA MALONEY, Appellant, -and…

Court:Appellate Term of the Supreme Court of New York, Second Department

Date published: Dec 8, 2004

Citations

2004 N.Y. Slip Op. 51545 (N.Y. App. Term 2004)