Opinion
2007-36 K C.
Decided March 11, 2008.
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered November 14, 2006. The order, insofar as appealed from as limited by the brief, denied plaintiff's motion to vacate the October 26, 2006 order dismissing the complaint, and to restore the action to the calendar.
PRESENT: WESTON PATTERSON, J.P. and RIOS, J.
Order, insofar as appealed from, affirmed without costs.
After allegedly having been illegally locked out of his apartment, plaintiff brought this action against his former landlord seeking damages for defendant's failure to return property and cash, and for seven weeks of rent. After defendant failed to appear or answer, an inquest was held, and a default judgment was entered in favor of plaintiff. Defendant's subsequent motion to vacate the default judgment was granted to the extent of ordering a traverse hearing to determine whether he was properly served. On the date of the hearing, the process server was not produced as a witness, and the hearing was adjourned to a date to which both parties consented, the court noting that this date was marked final against plaintiff. On October 26, 2006, the adjourned date, upon plaintiff's failure to appear, defendant's motion to vacate the default judgment was granted, and the action was dismissed.
Plaintiff subsequently moved to vacate the October 26, 2006 order of dismissal and to restore the matter to the calendar, claiming that he had been ill on October 26, 2006, and that he had a meritorious claim since defendant's possession of his property was contrary to the order of the court in a prior illegal lockout proceeding in which he had prevailed. Defendant opposed the motion, and, in an order entered on November 14, 2006, insofar as appealed from as limited by the brief, the court below denied the motion.
Whether to relieve a party of an order entered on default is a matter left to the sound discretion of the court ( see Matter of Fotiades, 38 AD3d 892 [2007]; Matter of Fierro v Fierro, 211 AD2d 676). Under the circumstances of this case, where there was a prior history of defaults, and particularly in view of plaintiff's failure to appear on the adjourned date for the traverse hearing, which was a date marked final against him, it was not an improvident exercise of discretion for the court below to deny plaintiff's motion to vacate the order of dismissal and to restore the matter to the calendar.
Weston Patterson, J.P. and Rios, J., concur.