Opinion
No. 2022-745 K C
07-28-2023
Tzifil Realty Corp., Appellant, v. Andrew Rona, Respondent, and John Doe, Undertenant.
Felipe E. Orner, for appellant. Andrew Rona, respondent pro se (no brief filed).
Unpublished Opinion
Felipe E. Orner, for appellant.
Andrew Rona, respondent pro se (no brief filed).
PRESENT:: MARINA CORA MUNDY, J.P., LISA S. OTTLEY, LOURDES M. VENTURA, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Hannah Cohen, J.), entered July 1, 2022. The order granted tenant's motion to, in effect, vacate a final judgment, entered May 11, 2022 upon tenant's failure to appear or answer the petition, and to be restored to possession in a nonpayment summary proceeding.
ORDERED that the order is affirmed, without costs.
Landlord commenced this nonpayment proceeding in February 2022, serving tenant by conspicuous place service, and tenant failed to appear or answer the petition. Landlord's motion for a default final judgment was granted after an inquest (Hannah Cohen, J.); a default final judgment awarding landlord possession was entered on May 11, 2022; and tenant was evicted on June 13, 2022. By order to show cause signed on June 16, 2022, tenant moved to, in effect, vacate the default final judgment (see CPLR 5015) and to be restored to possession. Tenant alleged in support of his motion that he had been out of town; that, even though he had arranged to have his mail forwarded, the United States Postal Service did not forward any mail from landlord; and that he filed an application with the COVID-19 Emergency Rental Assistance Program of 2021 (ERAP) (L 2021, ch 56, § 1, part BB, § 1, subpart A, sec 1, § 3 [3], as amended by L 2021, ch 417, § 2, part A, § 1; see Avalonbay Communities, Inc. v Dukes, 78 Misc.3d 134 [A], 2023 NY Slip Op 50453[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2023]). We note that it is undisputed that landlord was informed of tenant's pending ERAP application prior to the execution of the warrant of eviction. After a virtual hearing on tenant's motion, the Civil Court (Hannah Cohen, J.), by order entered July 1, 2022, granted the motion on the ground that it was improper for the court to proceed with an inquest and enter a default final judgment at that time. Tenant has since been restored.
As tenant demonstrated both a reasonable excuse for the default and a potentially meritorious defense to the entry of the default judgment (see CPLR 5015 [a] [1]; Nationstar Mtge., LLC v McLean, 140 A.D.3d 1131 [2016]; 136-76 39th Ave., LLC v Ai Ping Wu, 55 Misc.3d 128 [A], 2017 NY Slip Op 50363[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), we find no basis to disturb the Civil Court's order granting tenant's motion.
Accordingly, the order is affirmed, albeit on a different ground.
MUNDY, J.P., OTTLEY and VENTURA, JJ., concur.