Inwood Gardens, Inc. v Udoh

[*1] Inwood Gardens, Inc. v Udoh 2015 NY Slip Op 51536(U) Decided on October 22, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
570681/15

Inwood Gardens, Inc., Petitioner-Landlord-Respondent,

against

Charles Udoh, Respondent-Tenant-Appellant.

Tenant, as limited by his brief, appeals from those portions of (1) an order of the Civil Court of the City of New York, New York County (Arlene H. Hahn, J.), dated February 13, 2015, which denied his motion for discovery and granted landlord's cross motion to strike tenant's jury demand and (2) an order of the same court (Peter M. Wendt, J.), dated May 14, 2015, which denied his motion to vacate a default final judgment in a nonpayment summary proceeding.

Per Curiam.

Order (Arlene H. Hahn, J.), dated February 13, 2015, insofar appealed from, affirmed, with $10 costs. Order (Peter M. Wendt, J.), dated May 14, 2015, reversed, without costs, tenant's motion to vacate the default judgment is granted and the matter remanded to Civil Court for further proceedings.

Considering the strong policy favoring resolution of cases on the merits (see Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413-414 [2011]), we favorably exercise our discretion to relieve tenant of the default final judgment entered in this nonpayment summary proceeding. Tenant's isolated nonappearance was not willful, and no showing was made that landlord was prejudiced by the brief delay. Tenant also demonstrated the existence of a potentially meritorious defense to the Mitchell-Lama housing surcharges claimed to be owed.

We sustain the denial of tenant's motion for leave to conduct discovery, since his discovery requests were overbroad and burdensome, or sought irrelevant information. The jury demand was properly stricken, since the governing occupancy agreement contained an enforceable jury waiver provision (see Teitler v Tetenbaum, 123 Misc 2d 702, 703 [1984]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 22, 2015