Perez v. Glenmore Ave. Mgt., Inc.

Perez v Glenmore Ave. Mgt., Inc. (2021 NY Slip Op 50593(U)) [*1] Perez v Glenmore Ave. Mgt., Inc. 2021 NY Slip Op 50593(U) [72 Misc 3d 128(A)] Decided on June 25, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ 2019-13 K C Hector Perez, Respondent, against Glenmore Ave. Management, Inc., Appellant. The Rosenfeld Law Office (Avi Rosenfeld of counsel), for appellant. Cooper, Paroff & Graham, P.C., for respondent (no brief filed). Appeal from an order of the Civil Court of the City of New York, Kings County (Cheryl J. Gonzales, J.), entered October 25, 2018. The order, insofar as appealed from, denied the branch of a motion by Glenmore Ave. Management, Inc. seeking to vacate a final judgment of that court entered September 27, 2018 upon the failure of Glenmore Ave. Management, Inc. to appear and answer the petition in a summary proceeding brought pursuant to RPAPL 713 (10) and, upon such vacatur, to dismiss the petition. ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of the motion by Glenmore Ave. Management, Inc. seeking to vacate the default final judgment and, upon such vacatur, to dismiss the petition is granted to the extent of vacating the default final judgment. In September 2018, petitioner, Hector Perez, commenced this summary proceeding pursuant to RPAPL 713 (10), alleging that respondent, Glenmore Ave. Management, Inc. (Glenmore), had illegally evicted petitioner from the subject premises and seeking, among other things, to be restored to possession. Glenmore failed to answer or appear, and a final judgment was entered on September 27, 2018 awarding petitioner possession and directing Glenmore to restore petitioner to possession. By OSC filed in October 2018, Glenmore moved to, among other things, vacate the default final judgment pursuant to CPLR 5015 (a) (4) or, in the alternative, CPLR 5015 (a) (1) and, upon such vacatur, to dismiss the petition for lack of personal jurisdiction. By order entered October 25, 2018, the Civil Court denied Glenmore's motion. Upon a review of the record, we find that Glenmore did not satisfy its burden of demonstrating a lack of personal jurisdiction so as to warrant the vacatur of the default final [*2]judgment (see CPLR 5015 [a] [4]) or the dismissal of the petition on that ground. A movant seeking to vacate a default judgment based on an excusable default is required to demonstrate both that there was a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Codoner v Bobby's Bus Co., Inc., 85 AD3d 843 [2011]). "The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court, and will not be disturbed if the record supports such determination" (Green Apple Mgt. Corp. v Aronis, 55 AD3d 669, 669 [2008]). Among the relevant factors to be considered when deciding whether there is a reasonable excuse for a default is the extent of the delay in answering (see Gately v Drummond, 161 AD3d 947 [2018]; Citicorp Trust Bank, FSB v Makkas, 127 AD3d 907 [2015]). Under the particular circumstances presented, including that this proceeding was commenced in September of 2018, the default final judgment was entered on September 27, 2018, and Glenmore moved to vacate the default final judgment in October of 2018, we find that Glenmore demonstrated a reasonable excuse for its default and also demonstrated the existence of a potentially meritorious defense (see CPLR 5015 [a] [1]; Green Apple Mgt. Corp. v Aronis, 55 AD3d 669; Hodges v Sidial, 48 AD3d 633 [2008]). Thus, the Civil Court improvidently exercised its discretion in denying vacatur of the final judgment entered against Glenmore upon its default in appearing at trial. Moreover, vacatur is consistent with the strong public policy of resolving cases on their merits (see Fuentes v Virgil, 88 AD3d 643, 643 [2011]; Dimitriadis v Visiting Nurse Serv. of NY, 84 AD3d 1150 [2011]). Accordingly, the order, insofar as appealed from, is reversed, and the branch of Glenmore's motion seeking to vacate the default final judgment and, upon such vacatur, to dismiss the petition is granted to the extent of vacating the default final judgment. ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: June 25, 2021