Summary
In Woodlaurel (at 384), the court affirmed an order of this court denying a motion to vacate a default judgment and affirmed this court's conclusion that a proceeding commenced in the wrong name did not "implicate subject matter jurisdiction".
Summary of this case from Cortazzo v. ReynoldsOpinion
July 9, 1990
Appeal from the Supreme Court for the Ninth and Tenth Judicial Districts.
Ordered that the order is affirmed, with costs.
The record amply supports the finding of the District Court that the tenant's default was not excusable and that there was undue delay in moving for vacatur of the default (see, CPLR 5015 [a] [1]).
On the instant appeal, the tenant argues that the petition was defective in that it was improperly brought in the name of the landlord's agent, i.e., the landlord's attorney, rather than in the landlord's name, in violation of RPAPL 721. There is ample authority in support of this argument (see, Sollar v. Bloom, 91 Misc.2d 884; Zisser v. Bronx Cigar Corp., 91 Misc.2d 1025; 1550 Broadway Assocs. v. El-Pine Drinks, 96 Misc.2d 707; Cook v Escabar, 134 Misc.2d 1091; Gamliali v. Tower of David, 94 Misc.2d 763; Oppenheim v. Spike, 107 Misc.2d 55; see also, Isacsen v Williams, NYLJ, Aug. 23, 1984, at 13, col 2; White Plains Hous. Auth. v. Wood, NYLJ, Nov. 23, 1988, at 26, col 1; but see, Rhodes v. Shankle, 137 Misc.2d 1076 ). However, the Appellate Term properly concluded, contrary to the tenants' further argument, that this defect does not implicate subject matter jurisdiction (see, Sollar v. Bloom, supra, at 884; 1550 Broadway Assocs. v El-Pine Drinks, supra, at 709; see also, Baker v. Latham Sparrowbush Assocs., 129 A.D.2d 667; CPLR 3211 [a] [3]). Accordingly, vacatur of the tenants' default pursuant to the alternate ground contained in CPLR 5015 (a) (4) is not warranted (cf., Marine Midland Bank v. Bowker, 89 A.D.2d 194, affd 59 N.Y.2d 739). Mangano, P.J., Brown, Sullivan and Balletta, JJ., concur.