Consolidated appeal from orders of the Civil Court of the City of New York, Kings County (Jose Rodriguez, J.), entered November 9, 2004 and March 16, 2005. The order entered November 9, 2004 denied John Cerio's motion to vacate a default final judgment and warrant. The order entered March 16, 2005 upon, in effect, granting reargument, adhered to the prior order and also denied an application by Cerio to be restored to possession.

Appeal from order entered November 9, 2004 unanimously dismissed as superseded.

Order entered March 16, 2005 unanimously modified by providing that, upon reargument, that branch of John Cerio's motion seeking to vacate the default final judgment and warrant is granted and that branch of the motion seeking to be restored to possession is denied without prejudice to renewal, and matter remanded to the court below for all further proceedings; as so modified, affirmed without costs.

After this nonpayment proceeding was adjourned four times at landlord's request, John Cerio, who had answered and appeared on each court date, failed to appear on the last adjourned date, and a default judgment was entered and a warrant issued. Thereafter, Cerio moved to [*2]vacate the default final judgment and warrant. By order entered November 9, 2004, said motion was denied. After being evicted, Cerio moved, in effect, for reargument and also sought to be restored to possession. The court below, by order entered March 16, 2005, in effect granted reargument and again denied Cerio's application.

In our opinion, Cerio established a reasonable excuse for having defaulted since he established that he was ill and had been hospitalized on the adjourned date of trial. In addition, we find that Cerio has established the existence of an arguably meritorious

defense. Claiming that landlord's predecessor's registration of an intervening tenancy was fraudulent and that he has been the legal tenant all along, Cerio showed that an order issued by DHCR on August 12, 1992 prohibited landlord and/or its predecessor from charging rent increases after October 1, 1990, until DHCR issued an order restoring the rent. In opposition to the motion, landlord has not established that an order restoring rent has been issued by DHCR. In the absence of a rent restoration order, landlord was barred, pursuant to Rent Stabilization Code (9 NYCRR) § 2523.4 (a) (1), from collecting any guideline increases after October 1, 1990 (see Thelma Realty Co. v Harvey, 190 Misc 2d 303 [App Term, 2d & 11th Jud Dists 2001]; see also Condo Units LP v New York State Div. of Hous. and Community Renewal, 4 AD3d 424 [1st Dept 2004]). Moreover, since Cerio established that he never signed a lease agreeing to pay the allegedly unlawful rents sought in the petition, a judgment against him for those rents cannot stand. Consequently, the default final judgment must be vacated as against Cerio.

Given the present posture of the proceeding, we are of the opinion that the branch of Cerio's motion which sought restoration to possession should be denied without prejudice to renewal following the trial and upon Cerio's joinder of the new [*3]
tenant in possession, if there be one (Eight Assoc. v Hynes, 102 AD2d 746, 748 [1984], affd 65 NY2d 739 [1985]; Chester Mamaroneck Gardens v Riggsbee, 189 Misc 2d 439 [App Term, 9th & 10th Jud Dists 2001]).
Decision Date: December 15, 2005