U.S. Bank N.A. v Rose (2012 NY Slip Op 50318(U))

U.S. Bank N.A. v Rose

2012 NY Slip Op 50318(U) [34 Misc 3d 1230(A)]

Decided on February 27, 2012

Supreme Court, Queens County

Markey, J.

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This opinion is uncorrected and will not be published in the printed Official Reports.

In an order dated June 21, 2011, this Court granted the plaintiff's motion to deliver possession. The tenant Tannishia Mattis was personally served with a 90-day notice to evict on February 5, 2010 as a John Doe. After expiration of the 90-day notice, the plaintiff filed a motion to deliver possession, upon which the movant-tenant was served a copy. The Court granted this motion without opposition on June 21, 2011. The tenant Tannishia Mattis, upon the foregoing papers, now moves to vacate the writ of assistance and stay her eviction giving her more time to leave the premises.

A defendant moving to vacate a default judgment under CPLR 5015(a)(1) must demonstrate an excusable default and a meritorious defense (see, Tribeca Lending Corp. v Correa, ____AD3d ______, 2012 WL 502467, 2012 NY Slip Op. 01242 [2nd Dept. [*2]2012]; Ramirez v Islandia Executive Plaza, LLC, ___ AD3d ____, 2012 WL 502692, 2012 NY Slip Op. 01230 [2nd Dept. 2012]; Bank of New York v. Espejo, ___ AD3d _____, 2012 WL 503661, 2012 NY Slip Op. 01200 [2nd Dept. 2012]; Peck v Dybo Realty Corp., 77 AD3d 640 [2nd Dept. 2010]; Alberton Devs., Inc. v All Trade Enters., Inc., 74 AD3d 1000 [2nd Dept. 2010]; NYCTL-1997-1 Trust v Vila, 19 AD3d 382 [2nd Dept. 2005]). Even putting aside that she is not a party to the action, tenant Tannishia Mattis has failed to demonstrate an excusable default and a meritorious defense.

Tenant Tannishia Mattis alleges that she is a section 8 tenant at the premises and should have been added as a defendant in the foreclosure, along with the New York City Housing Authority. The tenant, however, did not set forth any evidence that she was a tenant in the premises at the time the action was commenced in 2008. Tenant Tannishia Mattis did not submit a copy of her lease or state in her affirmation when her lease commenced.

Mattis's argument that the premises are owned by someone other than the plaintiff is also without merit. The deed that Mattis argues shows that someone other than plaintiff owns the subject premises, in fact, deals with different premises. The tenant is not claiming lack of knowledge of the eviction proceeding. The tenant, moreover, has had almost two years since she was served with the 90-day notice to find and obtain a new apartment. In her reply papers the defendant, in fact, submitted a transfer voucher stating that she must relocate no later than December 28, 2011, which has already passed.