| 1234 Broadway LLC v Kim |
| 2015 NY Slip Op 50924(U) [48 Misc 3d 127(A)] |
| Decided on June 19, 2015 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Petitioner appeals from an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), dated January 23, 2015, which granted respondent Caroline Kim's motion to vacate a default final judgment and directed her to serve an answer in a holdover summary proceeding.
Per Curiam.
Order (Andrea Masley, J.), dated January 23, 2015, modified to the extent of reinstating respondent Caroline Kim's answer and striking the provision directing her to serve an answer; as modified, order affirmed, with $10 costs.
We reject petitioner's contention that respondent was precluded from seeking relief pursuant to CPLR 5015(a)(1). The March 6, 2014 order conditionally striking respondent's answer for failing to pay stipulated use and occupancy, and the resulting final judgment were entered upon respondent's default within the meaning of CPLR 5511 and therefore nonappealable, since respondent failed to submit written opposition to the motion (see M & C Bros., Inc. v Torum, 75 AD3d 869 [2010]; Fox v T.B.S.D., Inc., 278 AD2d 612, 613 [2000], lv denied 96 NY2d 716 [2001]). Thus respondent's remedy was to move to vacate the final judgment pursuant to CPLR 5015(a)(1) (see Figiel v Met Food, 48 AD3d 330 [2008]).
We find no cause to disturb the court's discretionary determination granting respondent's motion for vacatur relief. Respondent set forth a reasonable excuse for failing to make the stipulated use and occupancy payments, since her SSI benefits were temporarily suspended upon the death of her mother/caretaker, who was also the representative payee for respondent's benefits. Respondent also had a meritorious defense to petitioner's prior motion (see Apple Bank [*2]for Sav. v Fort Tryon Apts. Corp., 44 AD3d 497 [2007]), since the stipulation did not authorize the drastic remedy of striking the answer in the event of a payment default (see 49 Terrace Corp. v Richardson, 40 Misc 3d 135[A], 2013 NY Slip Op 51306[U] [App Term, 1st Dept 2013]).
We modify only to strike that portion of the order directing respondent to file an answer. The unrepresented respondent did not default in answering, but made an oral answer asserting a succession defense (RPAPL 743), on which the parties relied in charting the course of the litigation.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.