Opinion
03-07-2016
Birchwood Court Owners, Inc., Respondent, v. Carol Toner, Appellant.
PRESENT: :
Appeal from an order of the District Court of Nassau County, First District (Eric Bjorneby, J.), entered September 25, 2014. The order denied tenant's motion to vacate a default final judgment and warrant in a nonpayment summary proceeding.
ORDERED that the order is modified by providing that the branch of tenant's motion seeking to vacate the warrant is granted, and landlord is directed to restore tenant to possession forthwith upon tenant's payment, within 20 days of the date of this decision and order, of any and all arrears in rent and/or use and occupancy, less any funds on deposit in the District Court (see CPLR 5523); as so modified, the order is affirmed, without costs.
In this nonpayment summary proceeding to recover possession of a cooperative apartment, tenant appeals from an order denying her motion to vacate a default final judgment and warrant.
The branch of tenant's motion seeking to vacate the default final judgment was properly denied. Tenant's conclusory denial of service in her moving papers was insufficient to rebut the prima facie proof of proper service set forth in the process server's affidavit of service (see CPLR 5015 [a] [4]; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724 [2013]; LR Credit 22, LLC v Monaghan, 38 Misc 3d 129[A], 2012 NY Slip Op 52395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Moreover, tenant failed to establish a reasonable excuse for her default or a potentially meritorious defense under CPLR 5015 (a) (1). In this regard, we note that, contrary to tenant's contention, the omission of the name of the village in the address for the property provided in paragraph 6 of the petition does not constitute a fatal defect, particularly since the address was fully set forth elsewhere in the petition.
However, in light of the long-term nature of the tenancy, the potential loss of equity that tenant may sustain as a result of the eviction, and tenant's showing, prior to the execution of the warrant, of the availability of all the arrears and an excuse for not timely paying them, we find that tenant demonstrated good cause to vacate the warrant. Inasmuch as tenant subsequently surrendered possession after receiving a sheriff's notice to vacate, we exercise our authority to grant tenant's request on appeal for restitution (see CPLR 5523).
Accordingly, the order is modified by providing that the branch of tenant's motion seeking to vacate the warrant is granted, and landlord is directed to restore tenant to possession forthwith upon tenant's payment, within 20 days of the date of this decision and order, of any and all arrears in rent and/or use and occupancy, less any funds on deposit in the District Court.
Marano, P.J., Tolbert and Garguilo, JJ., concur. Decision Date: March 07, 2016