Watersview Owners, Inc. v Pacimeo

[*1] Watersview Owners, Inc. v Pacimeo 2006 NY Slip Op 51805(U) [13 Misc 3d 130(A)] Decided on August 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 17, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., GOLIA and RIOS, JJ
2005-1606 K C. -x

Watersview Owners, Inc., Respondent,

against

Saveria Pacimeo and Maria S. Rose, Appellants. -x

Appeal by Maria S. Rose and purported appeal by Saveria Pacimeo from an order of the Civil Court of the City of New York, Kings County (George M. Heymann, J.), dated September 16, 2005. The order denied a motion by Maria S. Rose and a purported motion by Saveria Pacimeo seeking to vacate a default final judgment of said court, entered August 27, 2004, to dismiss the proceeding, and to be restored to possession and for entry of judgment in favor of Rose on her counterclaims.

Purported appeal by Saveria Pacimeo dismissed, order and default final judgment vacated insofar as they are against Saveria Pacimeo, and proceeding dismissed as against Saveria Pacimeo.

Order, insofar as reviewed, modified by providing that Maria S. Rose's motion is granted only to the extent of vacating the warrant and directing that Maria S. Rose be restored to possession forthwith; as so modified, affirmed without costs. All funds deposited into the court below in this proceeding are directed to be released to landlord.

In this nonpayment proceeding against the proprietary lessees of a cooperative apartment, the record shows that tenant Saveria Pacimeo was deceased for several years prior to the commencement of the proceeding. In these circumstances, the default final judgment entered against Pacimeo on August 27, 2004 and the order dated September 16, 2005, insofar as it affects Pacimeo, are nullities, and the proceeding against Pacimeo must be dismissed (Zito v City of N.Y., 293 AD2d 465 [2002]; Livshits v Raginskiy, 289 AD2d 458 [2001]). [*2]

The court below did not err in finding that Maria S. Rose failed, upon her motion to vacate the default final judgment against her, to establish an excusable default, in particular because Rose delayed almost a year after entry of the default final judgment in this summary proceeding, and six months after being evicted, before moving to vacate. Thus, we leave undisturbed the default final judgment against Rose. However, since Pacimeo's leasehold rights became the property of her estate (see Westway Plaza Assoc. v Doe, 179 AD2d 408 [1992]) and since the estate was a necessary party (Lozynskyj v Leland, 9 Misc 3d 133[A], 2005 NY Slip Op 51651[U] [App Term, 1st Dept]) and was not joined, no warrant should have issued and Rose should not have been evicted pursuant to the default final judgment (see Gold v Schuster, 264 AD2d 547, 548 [1999]). Thus, we modify the order to the extent of vacating the warrant and restoring Rose to possession.

The funds on deposit in the court below, representing the amount of the monetary award against Rose only, are directed to be released to landlord.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: August 17, 2006