BH Shipping, LLC v. Vairo

BH Shipping, LLC v Vairo (2022 NY Slip Op 51366(U)) [*1] BH Shipping, LLC v Vairo 2022 NY Slip Op 51366(U) [77 Misc 3d 138(A)] Decided on December 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : TIMOTHY S. DRISCOLL, J.P., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ 2022-28 W C BH Shipping, LLC, Respondent, against Frank P. Vairo, Appellant, XYZ Corporation, Undertenant. Robert F. Zerilli and Joseph M. Becker, for appellant. The Law Offices of Scott Gross, P.C. (Scott Gross of counsel), for respondent. Appeal from a final judgment of the City Court of Yonkers, Westchester County (Evan Inlaw, J.), entered December 10, 2021. The judgment, entered upon an order of that court entered September 14, 2021 denying tenant's motion to, in effect, open his defaults, consisting of (1) failing to oppose landlord's motion seeking summary judgment on the issue of possession, a hearing to determine outstanding use and occupancy, and to dismiss tenant's counterclaims, and (2) failing to appear at a hearing on the issue of outstanding fair use and occupancy, awarded landlord possession and the sum of $31,040 in a holdover summary proceeding. ORDERED that the final judgment is affirmed, without costs. In this commercial holdover proceeding, landlord moved for summary judgment on the issue of possession, for a hearing to determine outstanding use and occupancy, and to dismiss tenant's counterclaims. Upon tenant's failure to oppose the motion, the City Court granted the motion and calendared the matter for a hearing. After the hearing, at which tenant failed to appear, the City Court determined that tenant owed landlord $31,400 in outstanding use and occupancy. Shortly thereafter, tenant moved to open his defaults. By order entered September 14, 2021, the City Court denied tenant's motion. On December 10, 2021, a final judgment was entered awarding landlord possession and the sum of $31,040. Although no appeal lies from a judgment entered upon the default of the appealing party [*2](see CPLR 5511), an appeal from such a judgment brings up for review those matters which were the subject of contest below (see James v Powell, 19 NY2d 249, 256 [1967]; City Chiropractic, P.C. v Global Liberty Ins. Co. of NY, 65 Misc 3d 159[A], 2019 NY Slip Op 51981[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]), which, in this case, is the order entered September 14, 2021 denying tenant's motion to open his defaults. To open his defaults, tenant was required to demonstrate a reasonable excuse for his defaults and a potentially meritorious defense to the proceeding (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; ZG Chiropractic Care, P.C. v 21st Century Ins. Co., 70 Misc 3d 138[A], 2021 NY Slip Op 50079[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Here, tenant failed to demonstrate a reasonable excuse for either default. As tenant has failed to demonstrate the existence of a reasonable excuse for the defaults, we need not reach the issue of whether tenant established a meritorious defense (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]). Accordingly, the final judgment is affirmed. DRISCOLL, J.P., GARGUILO and EMERSON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 22, 2022