Gist v Mack

[*1] Gist v Mack 2012 NY Slip Op 50239(U) Decided on February 9, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 9, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., WESTON and GOLIA, JJ
2010-2081 K C. x

Leslie Gist, Respondent,

against

Dana Mack, Appellant. x

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered June 3, 2010. The order denied defendant's motions to vacate a default judgment and for leave to amend the answer.

ORDERED that the order is modified by providing that defendant's motion to vacate the default judgment is granted to the extent that the judgment is vacated and the matter is remitted to the Civil Court for an inquest; as so modified, the order is affirmed, without costs.

Plaintiff seeks to recover $20,000 in unpaid rent and use and occupancy based upon defendant's breach of a landlord-tenant agreement. In a prior summary proceeding between the parties, plaintiff agreed to waive $10,000 in back rent, in exchange for defendant's timely surrender of possession of the premises. In the present action, plaintiff alleges that defendant failed to make payments due under the agreement and failed to timely vacate.

Following defendant's failure to proceed on the scheduled trial date, a judgment was entered in plaintiff's favor on February 17, 2009 in the principal sum of $20,000, representing alleged liquidated damages. Defendant moved to vacate the judgment entered on default, on the ground that plaintiff had never notified her or her attorney of the trial date. As a meritorious defense, she alleged that she did not owe plaintiff any money. Defendant also separately moved for leave to amend the answer. By order entered June 3, 2010, the Civil Court denied both [*2]motions.

In order to vacate the default judgment, defendant was required to 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]). Under all the circumstances presented, defendant failed to demonstrate a reasonable excuse for failing to proceed with the trial (see Schmitt v Jeyalingam, 71 AD3d 757 [2010]); however, as the judgment is based upon an alleged breach of a settlement agreement, an inquest should have been held to establish the amounts due plaintiff. A review of the original settlement agreement between the parties establishes that testimony concerning noncompliance is necessary to calculate the correct amount due.

Accordingly, the order is modified by providing that defendant's motion to vacate the default judgment is granted to the extent that the judgment is vacated and the matter is remitted to the Civil Court for an inquest for a recalculation of the amount of rent due.

Rios, J.P., Weston and Golia, JJ., concur.
Decision Date: February 09, 2012