19 E. 7th Group LP v WFB Corp.

[*1] 19 E. 7th Group LP v WFB Corp. 2012 NY Slip Op 50831(U) Decided on April 19, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 19, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Shulman, Torres, JJ
570491/11.

19 East 7th Group LP, Petitioner-Landlord-Respondent, - -

against

WFB Corporation d/b/a The Village Scandal, Respondent-Tenant-Appellant.

Tenant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 2, 2011, which denied its motion to vacate a default final judgment issued in a nonpayment summary proceeding.

Per Curiam.

Order (Arlene P. Bluth, J.), dated June 2, 2011, reversed, with $10 costs, vacatur motion granted, default final judgment vacated and matter remanded to Civil Court for further proceedings.

We favorably exercise our discretion to grant tenant vacatur relief from the final judgment entered upon its default in opposing landlord's motion to enforce the payment terms of the parties' prior so-ordered stipulation. Tenant's failure to oppose the motion resulted from the excusable law office failure of its prior counsel, whose isolated misstep was neither willful nor part of a pattern of delay (see The Travelers Ins. Co. v Abelow, 14 AD3d 395 [2005]). Tenant also demonstrated a meritorious defense to the motion by showing that it timely tendered the use and occupancy payment required by the stipulation (see Ogunbemi v New York City Hous. Auth., 65 AD3d 944 [2009]). In these circumstances, and in the absence of any discernible prejudice to landlord, this matter should be decided on the merits.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 19, 2012