| Ratnam Assoc. v Discount King USA, Inc. |
| 2020 NY Slip Op 50428(U) [67 Misc 3d 130(A)] |
| Decided on April 16, 2020 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Arthur V. Graseck, Jr., Esq., for appellants. Hutchinson & Hutchinson, P.C. (Richard L. Hutchinson of counsel), for respondent.
Appeal from an order of the District Court of Suffolk County, Sixth District (James P. Flanagan, J.), dated January 31, 2018. The order denied tenants' motion to vacate a final judgment of that court entered September 21, 2017 upon tenants' failure to appear or answer the petition in a nonpayment summary proceeding.
ORDERED that the order is reversed, without costs, and the matter is remitted to the District Court for a new determination of tenants' motion to vacate the default final judgment.
In this commercial nonpayment proceeding, a final judgment was entered on September 21, 2017 and a warrant issued upon tenants' failure to appear or answer the petition. Tenants subsequently moved, by order to show cause, to vacate the default final judgment and warrant. The District Court, upon signing tenants' order to show cause, directed tenants to post a $45,000 undertaking before the motion's return date. Tenants failed to timely file the undertaking. At the oral argument of the motion, the District Court stated that the undertaking was required and without it, the motion would be denied. Thereafter, by order dated January 31, 2018, the District Court denied tenants' motion without elaboration.
The right to be heard on the merits of a motion to vacate a default judgment cannot be conditioned on the making of a court-ordered deposit (see Guzman v Perez, 65 Misc 3d 151[A], 2019 NY Slip Op 51877[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; CO-BB Devonshire Venture, LLC v Smith, 60 Misc 3d 139[A], 2018 NY Slip Op 51197[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Zabolotny v Andersen, 19 Misc 3d 128[A], 2008 NY Slip Op 50517[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). Accordingly, the order is reversed and the matter is remitted to the District Court for a determination of the merits of tenants' motion.
ADAMS and EMERSON, JJ., concur.
GARGUILO, J.P., taking no part.
Paul Kenny