Yonkers Shopping Ctr., LLC v. Double Barrel, LLC

Yonkers Shopping Ctr., LLC v Double Barrel, LLC (2022 NY Slip Op 50434(U)) [*1] Yonkers Shopping Ctr., LLC v Double Barrel, LLC 2022 NY Slip Op 50434(U) [75 Misc 3d 130(A)] Decided on May 24, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, BARRY E. WARHIT, JJ 2021-55 W C Yonkers Shopping Center, LLC, Respondent, against Double Barrel, LLC, Doing Business as Whiskey House, Appellant. Boone Law, PLLC (Jacqueline Boone of counsel), for appellant. Paul W. Meyer, Jr., for respondent. Appeal from an order of the City Court of Yonkers, Westchester County (Evan Inlaw, J.), entered January 26, 2021. The order, insofar as appealed from, denied tenant's motion to, in effect, vacate an October 16, 2020 oral order of that court denying, upon tenant's failure to appear at a hearing, tenant's prior motion to restore the case to the calendar, stay landlord from reletting the premises, vacate the final judgment and warrant, and restore tenant to possession of the subject premises in a holdover summary proceeding. ORDERED that the order, insofar as appealed from, is affirmed, without costs. In this commercial holdover proceeding based upon various monetary and non-monetary defaults by tenant, the parties stipulated, on November 6, 2019, to restore tenant's lease. As a condition of the restoration, tenant agreed to, among other things, pay rent by a date certain, make certain installment payments through April 2020, make certain repairs, and provide a new liquor license and a new personal guaranty by the individuals who had become partial owners of tenant since the execution of the lease. In May 2020, upon landlord's determination that tenant failed to comply with the stipulation, landlord applied, in accordance with the agreement, for a final judgment of possession and warrant of eviction. Tenant was evicted on September 9, 2020, and subsequently moved to, among other things, vacate the final judgment and be restored to possession. A hearing on the motion was commenced on September 26, 2020, at which tenant's principal admitted to failing to comply with certain portions of the stipulation, including failing to make payments or certain repairs, update the liquor license, or provide the guaranty from its new owners. The hearing was adjourned to October 16, 2020. Tenant and its attorney failed to timely appear on the adjourned date and the court denied tenant's motion on the record (see Uniform Rules for City Courts [22 NYCRR] § 210.14 [a] [2]). Tenant subsequently moved to, in effect, vacate the default order and for the court to decide the merits of the prior motion to vacate the judgment and be restored to possession. In an order entered January 26, 2021, the City Court, [*2]insofar as is relevant to this appeal, denied tenant's motion on the ground that tenant failed to demonstrate the merits of its prior motion. We affirm the order insofar as appealed from. A party seeking to vacate a default must demonstrate a reasonable excuse for his or her default and a potentially meritorious claim or defense (see CPLR 5015 [a] [1]; Gately v Drummond, 161 AD3d 947 [2018]). We agree with the City Court that tenant did not demonstrate that its motion to vacate the final judgment had merit, as tenant did not show that it complied with the stipulation or that there is any basis to relieve tenant of the consequences of the stipulation (see Hallock v State of New York, 64 NY2d 224, 230 [1984]; Matter of Frutiger, 29 NY2d 143, 149-150 [1971]), including a claim of impossibility (see City Natl. Bank v Baby Blue Distribs., Inc., 199 AD3d 559 [2021]; 558 Seventh Ave. Corp. v Times Sq. Photo Inc., 194 AD3d 561 [2021]). Under the circumstances, we need not address tenant's excuse for its default in appearing in court (see Oversby v Linde Div. of Union Carbide Corp., 121 AD2d 373 [1986]; North Shore Cardiac Imaging, P.C. v Glaser, 63 Misc 3d 143[A], 2019 NY Slip Op 50628[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). Tenant's remaining contentions lack merit. Accordingly, the order, insofar as appealed from, is affirmed. GARGUILO, P.J., EMERSON and WARHIT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: May 24, 2022