75 Fort Wash., LLC v Polanco

[*1] 75 Fort Wash., LLC v Polanco 2016 NY Slip Op 51695(U) Decided on November 30, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Gonzalez, JJ.
570428/16

75 Fort Washington, LLC, Petitioner-Respondent,

against

Alejandro Polanco, Mario Fernandez, "John Doe", Respondents-Appellants.

Respondents appeal from an order of the Civil Court of the City of New York, New York County (Phyllis K. Saxe, J.), entered on or about August 22, 2015, which granted petitioner's motion to vacate an order dismissing the holdover petition for nonappearance and denied respondents' cross motion for summary judgment.

Per Curiam.

Order (Phyllis K. Saxe, J.) entered on or about August 22, 2015, affirmed, with $10 costs.

Given the strong public policy in favor of deciding cases on their merits, we find no cause to disturb the motion court's discretionary determination to vacate the dismissal order entered upon petitioner's failure to appear. The default was purportedly caused by petitioner's counsel's inadvertent miscalendaring of the scheduled date, which amounted to law office failure (see Chelli v Kelly Group, P.C., 63 AD3d 632 [2009]; Dokmecian v ABN AMRO N. Am., 304 AD2d 445 [2003]), petitioner promptly moved to vacate the default and there was no showing of prejudice. The record simply does not support respondents' claim that petitioner's failure to appear was willful or part of a pattern of delay (see Travelers Ins. Co. v Abelow, 14 AD3d 395 [2005]). As to the merits and turning to the substantive issues advanced in respondents' cross motion, Civil Court correctly noted that several unresolved triable issues exist as to whether respondent Fernandez, the grandson of the deceased rent-stabilized tenant, primarily resided with the tenant of record for two years immediately prior to her death, so as to entitle respondent to succession rights.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: November 30, 2016