Victorian Gardens, LLC v Kehoe (2009 NY Slip Op 51098(U))

Victorian Gardens, LLC v Kehoe

2009 NY Slip Op 51098(U) [23 Misc 3d 144(A)]

Decided on March 23, 2009

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Victorian Gardens, LLC, Appellant,

against

Chris Kehoe and Laura Kehoe, Respondents.

Appeal from an order of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.), entered March 27, 2008. The order granted tenants' motion to vacate a default final judgment and dismissed the petition in a holdover summary proceeding.

Order modified by striking the provision thereof dismissing the petition; as so modified, affirmed without costs and matter remanded to the District Court for trial.

The moving papers submitted by tenants were sufficient to establish the requisite excusable default and meritorious defense so as to warrant the granting of their motion to vacate the default final judgment entered against them in this holdover proceeding (CPLR 5015 [a] [1]; Greene v New York City Hous. Auth., 283 AD2d 458 [2001]; Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]; Parker v City of New York, 272 AD2d 310 [2000]). However, on the record presented, the District Court erred in making a finding of fact that tenants had removed from the premises prior to the commencement of the proceeding, and in dismissing the petition on this ground (see Jah Jeh Realty Corp. v Staten Is. Univ. Hosp.- EAP, 15 Misc 3d 131[A], 2007 NY Slip Op 50669[U] [App Term, 2d & 11th Jud Dists 2007]; 2 Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 38:26, at 593 [4th ed]). The photographic evidence of tenants' furniture and other possessions remaining in the premises after the holdover proceeding had been commenced, and the statements contained in the affidavits of landlord's superintendent and property manager concerning tenants' failure to return the keys and [*2]concerning the contents remaining in the apartment, raised an issue of fact as to whether tenants had removed from the premises prior to the commencement of the holdover proceeding (see Schwartz, Inc. v DeJong, 102 Misc 553 [1918]), and a trial is required to resolve said issue. Accordingly, the District Court's order is modified by striking the provision dismissing the petition.