Hempstead Plaza-Madison v Brown

[*1] Hempstead Plaza-Madison v Brown 2006 NY Slip Op 51184(U) [12 Misc 3d 133(A)] Decided on June 8, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2005-477 Q C.

Hempstead Plaza-Madison, Respondent,

against

Jacqueline Brown, Appellant. Jacqueline Brown, Appellant, Yolanda Portillo, Third-Party Defendant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), dated March 31, 2005. The order denied defendant's motion to vacate a decision "after inquest."

Order affirmed without costs.

After trial in this action for rent arrears and other damages, the court wrote a decision, dated November 15, 2004, awarding plaintiff the sum of $3,630 for rent and use and occupancy through July 2001, and $1,106.78 for damage to the apartment. However, the decision was erroneously marked "after inquest" (although it was later corrected to state "after trial"). In support of an "order to show cause to vacate the default judgment and to restore to the calendar" dated February 22, 2005, defendant explained that she had received no notice of the court's decision, that she had not defaulted but had appeared for trial, and, as a meritorious defense, that [*2]she did not owe the use and occupancy because she had given a 30-day notice and vacated the apartment. In an order dated March 31, 2005, the court below, evidently treating defendant's motion as an untimely CPLR 4404 (b) motion, stated that defendant failed to show that the court had "misapprehended any question of fact or law as presented at trial," and denied the motion.

We agree with defendant that she was prejudiced by the court's mis-description of the decision as being "after inquest." Accordingly, we decline to treat her motion as being one for CPLR 4404 (b) relief and treat it solely as one to vacate a default, and we consider the motion to have been appropriately denied since no default occurred. Defendant remains free to raise any contentions concerning the determination after trial upon an appeal from the judgment, should one be entered.

Having reviewed the record for the purpose of determining the proper scope of review on this appeal, we incidentally note that the proof at trial indicated that defendant's landlord was an entity known as Commuter Housing Co., not plaintiff, and that no proof of an assignment to plaintiff was shown.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: June 8, 2006