Gristmill Realty, LLC v. Roa

Gristmill Realty, LLC v Roa (2020 NY Slip Op 51358(U)) [*1] Gristmill Realty, LLC v Roa 2020 NY Slip Op 51358(U) [69 Misc 3d 142(A)] Decided on November 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports. Decided on November 12, 2020 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : TERRY JANE RUDERMAN, J.P., BRUCE E. TOLBERT, ELIZABETH H. EMERSON, JJ 2019-1005 W C Gristmill Realty, LLC, Respondent, against Roita Tina Roa, Also Known as Tina Roa, Appellant. Tilem & Associates, P.C. (Peter H. Tilem of counsel), for appellant. Stephen P. Dewey, for respondent. Appeal from an order of the City Court of Yonkers, Westchester County (Michael A. Martinelli, J.), entered April 19, 2019. The order, insofar as appealed from, upon reargument, adhered to the determination in an order of that court entered December 21, 2018 denying tenant's motion to vacate a final judgment of that court entered February 29, 2012, to dismiss the petition, and for restitution of levied funds upon by landlord. ORDERED that the order entered April 19, 2019, insofar as appealed from, is reversed, without costs, and, upon reargument, tenant's motion to vacate the final judgment, to dismiss the petition, and for restitution of levied funds is granted, and landlord is directed to refund the full amount levied within 30 days of the date of this decision and order. This nonpayment proceeding was commenced in 2011, and a final judgment was entered on February 29, 2012 awarding landlord possession and the principal sum of $10,192. In 2018, after landlord had levied upon her bank account, tenant moved to vacate the final judgment and to dismiss the petition, and for restitution of the levied funds, arguing that the final judgment had been entered on tenant's default and that the court lacked personal jurisdiction. By order entered December 21, 2018, the City Court (Michael A. Martinelli, J.) denied tenant's motion, stating that the court file "reveals that the Respondent appeared in Court on the return date of the petition and consented to the entry of judgment." Tenant then moved for leave to reargue her initial motion, stating in an affidavit that she had not appeared in court on the return date of the petition. She [*2]also submitted a transcript demonstrating that, in her absence, landlord's attorney had made the following representation to the court (Thomas R. Daly, J.): "They were here, Judge. Agreed to a [sic] final amount in petition plus costs and fees with a stay to 8/31/11." Landlord argued that an illegible notation which appears at the bottom of landlord's affidavit of service of the notice of petition and petition represents an affirmation by Judge Daly that tenant had appeared and consented to the entry of a final judgment. By order entered April 19, 2019, the City Court (Michael A. Martinelli, J.) granted the branch of tenant's motion seeking reargument and, upon reargument, adhered to its original determination, stating that its prior determination that tenant had appeared and consented to the entry of the judgment "was based on notations contained in the Court's file," and that tenant had "failed to demonstrate that the Court overlooked or misapprehended the facts or law." Contrary to the finding of the City Court, the record before this court does not include any proof that tenant appeared in the proceeding, let alone that she consented to the entry of a final judgment (see CPLR 2104), and we therefore find that she did not waive the defense of lack of personal jurisdiction. We further find, upon a review of the record, that tenant demonstrated that the court lacked personal jurisdiction. The affidavit of service, which alleges conspicuous place service, does not satisfy the "reasonable application" standard for resort to such service pursuant to RPAPL 735 (1) (see Martine Assoc., LLC v Minck, 5 Misc 3d 61 [App Term, 2d Dept, 9th & 10th Jud Dists 2004]). We note, in addition, that a default judgment may not be entered on facially insufficient papers and that the petition herein is defective in that it fails to allege an unequivocal oral rent demand or demonstrate that a written rent demand was served (see id.). We further note that the entry of a default final judgment with a monetary award was, in any event, improper here because the due diligence requirements of CPLR 308 (4) were not met (see id.; Avgush v Berrahu, 17 Misc 3d 85 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). Accordingly, the order entered April 19, 2019, insofar as appealed from, is reversed and, upon reargument, tenant's motion to vacate the final judgment, to dismiss the petition, and for restitution of levied funds is granted, and landlord is directed to refund the full amount levied within 30 days of the date of this decision and order. RUDERMAN, J.P., TOLBERT and EMERSON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: November 12, 2020