Plaintiff commenced this action against defendant seeking $1,600 (one thousand six hundred dollars) in damages arising out of defendant's failure to pay the broker's fee owed by defendant to plaintiff. Defendant failed to appear or answer in this proceeding. On May 21, 2008, an inquest was held on plaintiff's damages, wherein the plaintiff credibly established that defendant had agreed to pay plaintiff $1,600 as a broker's fee for finding defendant an apartment. Plaintiff established that she secured an apartment for defendant at 121 North 6th Avenue in Mount Vernon and that defendant subsequently moved into that apartment. Accordingly, the Court issued a judgment against the defendant in the amount of $1,600.

Defendant now moves by Order to Show Cause to vacate the judgment. In her order to show cause, defendant argues that she was evicted from the apartment found by plaintiff, located at 121 North 6th Avenue in Mount Vernon after only residing there for four months. Defendant does not deny that she entered into a contract with plaintiff for the payment of a broker's commission upon plaintiff finding her a suitable apartment, but argues that the $1,600 fee due to plaintiff should be prorated since she did not live at the premises for a full year. Defendant also acknowledges that she was served with notice of the small claims proceeding, however, states that she did not appear because she was awaiting the outcome of her eviction. Defendant now asks the Court to reduce the fee due to plaintiff as a result of the eviction.

CPLR 5015 states that "The court which rendered a judgment or order may relieve a party from it upon such terms as may be just...upon the ground of: 1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party." A motion for leave to vacate a judgment entered upon a default may be granted if the movant establishes that its default was excusable and that it has a meritorious defense to the [*2]action (Barbagallo v Nationwise Exterminating & Deodorizing, Inc., 260 AD2d 518 (2d Dept 1999); Grutman v Southgate at Bar Harbor Home Owners' Assn., 207 AD2d 526 (2d Dept 1994)).

The Court finds that the defendant has failed to raise an excusable default and meritorious defense. Defendant's failure to appear for trial and inquest is inexcusable. Defendant admits that she had notice of the proceeding, yet she did not appear because she was awaiting to outcome of the eviction proceeding.

Similarly, defendant has not raised a meritorious defense. In New York, the common law rule is that "a broker who produces a person ready and willing to enter into a contract upon his employer's terms . . . has earned his commissions'" (Feinberg Bros. Agency v Berted Realty Co., Inc.., 70 NY2d 828 (1987) (quoting Tanenbaum v Boehm, 202 NY 293 (1911)). In fact, under common law a broker is entitled to be paid commissions even if no contract is ever signed, as long as a person ready and willing to enter into the proposed contract is produced (See Tannenbaum v Boehm, supra).

Here, the broker was assigned the task of assisting the defendant in renting and locating a suitable apartment. Defendant, by her own admission, moved into the apartment secured by the plaintiff and remained there for a period of four months. Since the defendant entered into a lease for an apartment located by plaintiff, the subsequent eviction and cancellation of the lease by defendant's landlord shortly after the defendant took occupancy does not effect the broker's right to recover a commission pursuant to the brokerage agreement (Kaplon-Belo Associates v Farrelly et al., 221 AD2d 321 (2d Dept 1995)). The broker's obligation toward the defendant was entirely distinct from the landlord's obligation toward defendant.

Based on the foregoing, the motion to vacate the judgment is denied.

This constitutes the Decision and Order of this Court.

Dated:July 22, 2008

Mount Vernon, New York

__________________________

Hon. Adam Seiden

Associate City Judge of Mount Vernon

To:

Cordelia Brown

Plaintiff pro se

Althea James

Defendant pro se