Stephenson v Lucenti

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on March 20, 2026

2024-1188 K C

Present: : Wavny Toussaint, P.J., ChereÉ A. Buggs, Joanne D. QuiÑOnes, JJ

Law Office of Syntyche Stephenson, Esq. (Syntyche Stephenson of counsel), for appellant.

Leonard Lucenti and Joseph Lucenti, respondents pro se (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Tashanna B. Golden, J.), dated July 15, 2024. The order denied landlord's motion to, in effect, vacate an order of that court dated June 4, 2024 dismissing the petition in a nonpayment summary proceeding upon landlord's failure to appear for a scheduled court date.

ORDERED that the order is reversed, without costs, landlord's motion to, in effect, vacate the order dated June 4, 2024 dismissing the petition is granted, and the petition is reinstated.

In this nonpayment proceeding to recover possession of an unregulated apartment, the petition states that the parties entered into a monthly rental agreement wherein tenants agreed to pay a monthly rent of $1,700. After two adjournments for tenants to retain counsel, landlord failed to appear at a scheduled court date and, by order dated June 4, 2024, the Civil Court (Tashanna B. Golden, J.) dismissed the petition with prejudice (see 22 NYCRR 208.14 [b] [2]). Landlord moved to vacate that order, submitting an affirmation of his attorney who alleged that she had miscalendared the court date, constituting a reasonable excuse for failing to appear, and arguing that landlord has a potentially meritorious cause of action in that tenants owe rent pursuant to a month-to-month oral agreement. By order dated July 15, 2024, the Civil Court (Tashanna B. Golden, J.) denied the [*2]motion on the ground that there was no lease, citing Fairfield Beach 9th, LLC v Shepard-Neely (77 Misc 3d 136[A], 2022 NY Slip Op 51351[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

"Where an action has been dismissed because of a default by a [petitioner], to vacate the dismissal 'it [is] incumbent upon [the petitioner] to demonstrate a reasonable excuse for the default and a meritorious cause of action' " (SZ Med., P.C. v Allstate Ins. Co., 59 Misc 3d 135[A], 2018 NY Slip Op 50497[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018], quoting V.S. Med. Servs., P.C. v Travelers Ins. Co., 24 Misc 3d 32, 34 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Although the Civil Court did not reach the issue of whether landlord set forth a reasonable excuse, the miscalendared court date constitutes "excusable law office failure" (Dokmecian v ABN AMRO N. Am., 304 AD2d 445, 445 [2003], see also Wilner v Village of Roslyn, 163 AD3d 898 [2018]). Additionally, landlord set forth a potentially meritorious cause of action in that tenants allegedly defaulted on their obligation to pay rent for this unregulated apartment pursuant to an oral month-to-month agreement (see Alice Formey Irrevocable Trust v Edwin, 86 Misc 3d 136[A], 2025 NY Slip Op 51178[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]).

Accordingly, the order is reversed, landlord's motion to, in effect, vacate the order dated June 4, 2024 dismissing the petition is granted, and the petition is reinstated.

TOUSSAINT, P.J., BUGGS and QUIÑONES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: March 20, 2026