Opinion
No. 2003-179 K C.
Decided January 27, 2004.
Appeal by tenant from an order of the Civil Court, Kings County (S. Goodheartz, J.H.O.), dated February 10, 2003, which denied his motion to vacate a default final judgment.
Order unanimously reversed without costs, tenant's motion to vacate the default final judgment granted and tenant's time to serve and file an answer extended to 30 days from the date of the order entered hereon.
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
Landlord purchased the property at issue at a foreclosure sale. Although landlord knew tenant was in possession of the property and operating a grocery store, tenant was not named as a party in the foreclosure action. After landlord acquired title to the property, it commenced the instant holdover proceeding and obtained a default final judgment against tenant. Tenant, who was out of the country, moved by counsel to vacate the default final judgment. An employee of tenant asserted that tenant defaulted in the holdover proceeding because he was temporarily out of the country and that a meritorious defense existed because tenant occupied the premises pursuant to a lease which was not affected by the foreclosure sale since he was not named as a party in the foreclosure action. A copy of the lease was annexed to the moving papers, but it was not authenticated by a person with personal knowledge. Landlord opposed tenant's motion, arguing that the issues were not raised by persons with personal knowledge of the facts. Landlord also asserted that the lease was not enforceable against it pursuant to Real Property Law § 291 as the landlord was a bona fide purchaser for value and the lease was not recorded. In his reply papers, tenant, who had, during the interim, returned to the United States, properly authenticated the lease and set forth that he defaulted because he was out of the country. Tenant also denied that he ever spoke to landlord's president before landlord took title to the property, thereby raising an issue of fact as to whether landlord was a bona fide purchaser for value.
While a party may not raise facts for the first time in reply papers, such a prohibition protects non-moving parties who would not have an opportunity to respond to facts set forth for the first time in a reply affidavit ( see Sanford v. 27-29 W. 181st St. Assn., 300 AD2d 250; see also Martin v. New York Hosp., 295 AD2d 485, 486; Johnston v. Continental Broker-Dealer Corp., 287 AD2d 546). However, in the instant case, tenant did not raise new facts for the first time in his reply papers. Rather, he raised the same facts, to wit, his absence from the country and the existence of a lease, which were set forth in his moving papers, and landlord had previously responded to said facts on the merits. The only difference was that, in his reply affidavit, the facts were set forth in admissible form. Inasmuch as landlord was not surprised or prejudiced and landlord had ample opportunity to respond and did in fact do so, we hold that, under these circumstances, said facts should be considered with respect to tenant's motion to vacate the default final judgment since there is a preference for resolution of disputes upon the merits ( see Sanford, 300 AD2d at 251). In light of the foregoing, tenant sufficiently established a reasonable excuse for his default and the existence of a meritorious defense warranting vacatur of the default final judgment ( see CPLR 5015 [a] [1]; Fort Madison Assocs. v. Caldararo, 280 AD2d 581). Accordingly, tenant's motion should have been granted and tenant's time to serve and file his answer is extended to 30 days from the date of the order entered hereon.