Freire v Fajardo

[*1] Freire v Fajardo 2010 NY Slip Op 51453(U) [28 Misc 3d 137(A)] Decided on August 12, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2009-392 Q C.

Miriam Freire, Respondent,

against

Jose Fajardo, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), entered February 24, 2009. The order denied occupant's motion to vacate a default final judgment and restore the matter to the calendar.

ORDERED that the order is reversed without costs and occupant's motion to vacate the default final judgment and restore the matter to the calendar is granted.

Petitioner commenced this holdover proceeding following the service upon occupant of a 30-day notice terminating an alleged oral month-to-month tenancy agreement. It appears from the sparse record on appeal that occupant appeared on the return date of the petition and sought to interpose, as his sole defense to the proceeding, a claim that he is the equitable owner of the property and that title was placed in petitioner's name only because occupant's credit was bad. The Civil Court advised occupant that his remedy was to assert the claim in the Supreme Court and to seek a stay from that court, and adjourned the matter for trial. Occupant appeared in court on the morning of the adjourned date and acknowledged that he had not commenced an action in Supreme Court or sought a stay from that court. The court then directed that the matter proceed to trial that afternoon. Occupant failed to appear for trial, and a default final judgment was entered against him. Occupant's subsequent motion to vacate the default final judgment was denied.

It is well established that the equitable defense of constructive ownership can be asserted in a summary proceeding (see RPAPL 743 ["The answer may contain any legal or equitable defense . . . "]; Nissequogue Boat Club v State of New York, 14 AD3d 542 [2005]; City of New York v Akbar's Self Help, Inc., 25 Misc 3d 129[A], 2009 NY Slip Op 52112[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Paladino v Sotille, 15 Misc 3d 60 [App Term, 9th & 10th Jud Dists 2007]). In the instant matter, while no formal order was entered precluding occupant from asserting the equitable defense, the effect of the court's directive was to preclude him from interposing the defense. The clear import of the judge's directive to occupant instructing him to go to Supreme Court and obtain a stay was to inform him that if he did not obtain a stay from Supreme Court with a subsequent adjudication of title, then he could not be successful in this summary proceeding. As it was error for the court to preclude occupant from interposing his [*2]defense, the order denying occupant's motion to vacate the default final judgment and restore the matter to the calendar is reversed and the motion is granted.

Golia and Steinhardt, JJ., concur.

Weston, J.P., dissents in a separate memorandum.

Weston, J.P., dissents and votes to affirm the order in the following memorandum:

In my view, the Civil Court did not improvidently exercise its discretion in denying tenant's motion. A defendant seeking to vacate a judgment entered upon his or her default must demonstrate both a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Hodges v Sidial, 48 AD3d 633, 634 [2008]; Hageman v Home Depot U.S.A., Inc., 25 AD3d 760 [2006]). What constitutes a reasonable excuse lies within the sound discretion of the trial court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]).

Here, tenant's unsupported claim that he had to work was insufficient to vacate the default (see Cooper v Cooper, 55 AD3d 866 [2008]).[FN1] Tenant similarly failed to assert a meritorious defense. In the order to show cause below, tenant baldly stated that he was the owner of the premises and nothing more.

Contrary to the majority opinion, tenant cites to nothing in the record to support his claim that he was precluded from raising a defense of ownership. In denying tenant's motion to vacate the default, the Civil Court cited to the lack of a reasonable excuse for tenant's failure to appear, and added that tenant had been advised that in order to stay this proceeding, he had to go to Supreme Court. Nothing in the court's language can be construed as precluding tenant from establishing a defense of equitable ownership at the trial. Thus, the majority's suggestion that tenant's appearance at the trial would have been futile is based on pure speculation.

Finally, it should be noted that, on appeal, tenant admits that his claim of "ownership" is based upon a scheme to defraud the mortgagee. In these circumstances, tenant cannot complain that he was barred from raising a defense that is clearly based on fraud.

Accordingly, I vote to affirm the order of the Civil Court.
Decision Date: August 12, 2010 Footnotes

Footnote 1: There is nothing in the record to suggest that tenant ever requested to adjourn the trial that day because he had to work.