Winthrop Realty, LLC v Maloney

[*1] Winthrop Realty, LLC v Maloney 2004 NY Slip Op 51545(U) Decided on December 8, 2004 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: December 8, 2004
2004-55 K CSUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ

WINTHROP REALTY, LLC, Respondent,

against

SANDRA MALONEY, Appellant, -and- TYRON HOLDER, Tenant.

Appeal by tenant Sandra Maloney from an order of the Civil Court, Kings County (A. Alterman, J.), entered January 8, 2004, denying her motion to vacate a final judgment of possession entered upon her default.

Order unanimously reversed without costs, tenant Sandra Maloney's motion to vacate the default final judgment entered against her granted and matter remanded to the court below for all further proceedings.

Tenant Sandra Maloney established a reasonable excuse for her default, and made sufficient factual allegations to constitute a meritorious defense to the proceeding (CPLR 5015), in that the predicate written rent demand (RPAPL 711 [2]) does not appear to have been served in accordance with RPAPL 735 (see Matter of Salvatore & Catherine Pepe v Miller & Miller Consulting Actuaries, 221 AD2d 545 [1995]; see generally Eight Assoc. v Hynes, 65 NY2d 739 [1985]), tenant at all times denied that the rent sought in the petition remained due, and there is [*2]evidence of payment of the rent sought in the petition prior to entry of the judgment. In the circumstances presented herein, tenant should be permitted to present her defenses at trial.
Decision Date: December 08, 2004