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Jacob Marion, LLC v El Bey
2016 NY Slip Op 50219(U) [50 Misc 3d 143(A)]
Decided on February 23, 2016
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on February 23, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ.
2014-2819 K C

Jacob Marion, LLC, Respondent,

against

Takara El Bey, Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Gary Franklin Marton, J.), entered October 28, 2014. The order denied tenant's motion to vacate a default final judgment in a holdover summary proceeding.

ORDERED that the order is reversed, without costs, and tenant's motion to vacate the default final judgment is granted.

In this holdover summary proceeding, tenant failed to appear, and a default final judgment was entered awarding possession to landlord. Tenant appeals from an order of the Civil Court denying her motion to vacate the default final judgment.

It is well settled that a party seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and the existence of a meritorious cause of action or defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Scarlett v McCarthy, 2 AD3d 623 [2003]). In the case at bar, within hours of the default, tenant moved by order to show cause to vacate the default final judgment. In support of the motion, she stated that she had been prevented from appearing in court that morning because the Department of Housing Preservation and Development had been conducting an inspection of the property. She further stated that petitioner is not the owner of the property and that she is the owner thereof, thereby implicitly denying the allegation of the petition that she is in possession pursuant to an oral rental agreement. Thus, tenant has shown an excuse for the default and an arguably meritorious defense.

Accordingly, the order is reversed and tenant's motion to vacate the default final judgment is granted.

Pesce, P.J., Weston and Solomon, JJ., concur.


Decision Date: February 23, 2016