160 Clare LLC v Karla Burns

[*1] 160 Clare LLC v Karla Burns 2009 NY Slip Op 51319(U) [24 Misc 3d 128(A)] Decided on June 30, 2009 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, Shulman, JJ
570335/09.

160 Clare LLC, Petitioner-Landlord-Appellant,

against

Karla Burns, Respondent-Tenant, and Jessica Richter, Respondent-Respondent.

Petitioner-landlord, as limited by its briefs, appeals from (1) an order of the Civil Court of the City of New York, New York County (David B. Cohen, J.), entered August 8, 2008, which denied its motion to restore the case to the calendar and granted respondent Richter's cross motion to dismiss for failure to prosecute, and (2) that portion of an order (same court and Judge), entered December 24, 2008, which, upon reargument, adhered to the prior determination.

Per Curiam.

Order (David B. Cohen, J.), entered December 24, 2008, insofar as appealed from, reversed, without costs, motion granted, cross motion denied, the dismissal order vacated, and the proceeding restored to the court's calendar. Appeal from order, same court and Judge, entered August 8, 2008, dismissed, without costs, as superseded by the appeal from the December 24, 2008 order.

On January 25, 2006, several months after issuance of a possessory judgment against the defaulting tenant of record, the petitioner-landlord's eviction claim against the remaining apartment occupant, respondent Richter, was marked off calendar on consent pending completion of the discovery sought by Richter in connection with her illusory tenancy defense. Petitioner's motion to restore, made approximately 24 months after the mark-off date and 11 months after discovery was completed, should have been granted. While petitioner offered no valid excuse for its delay in restoring the case, we take into account the colorable merit of petitioner's possessory claim against respondent, the absence of an intent to abandon the proceeding, the lack of prejudice to respondent attributable to the delay, and the fact that the case was marked off the calendar through no fault of petitioner (see 184 W. Corp. v Westcott, 20 Misc 3d 24 [2008]; Berger E. Corp. v Grigg, 6 Misc 3d 76 [2004]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 30, 2009