Jeffrey Zagelbaum Mgt., LLC v Walker
Annotate this CaseDecided on July 1, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
Jeffrey Zagelbaum Management, LLC, Respondent,
against
Sheryl Walker, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Marc Finkelstein, J.), entered October 2, 2012. The order denied tenant's post-eviction motion to, among other things, hold landlord in contempt of court, and to vacate a default final judgment and restore tenant to possession, in a nonpayment summary proceeding.
ORDERED that the order is affirmed, without costs.
In this nonpayment proceeding commenced in December 2011, tenant, after submitting a written answer, failed to appear in court on January 24, 2012, and the Civil Court entered a default final judgment, awarding landlord possession and the principal sum of $2,255.44. Thereafter, tenant moved to vacate the default final judgment, which motion was granted by order dated February 1, 2012. The order also adjourned the proceeding to February 15, 2012, at 2:15 p.m., for a traverse hearing and trial. Tenant failed to appear on February 15th and, on that same day, a new default final judgment was entered awarding landlord possession and the principal sum of $2,255.44.
By motions returnable February 27, 2012 and March 7, 2012, tenant sought to vacate the default final judgment. These motions were denied upon tenant's failure to appear on the return dates. Tenant subsequently filed several orders to show cause (OSCs), seeking to vacate the default judgment, all of which were refused. Further motions by tenant returnable on March 28, 2012 and May 24, 2012 to vacate the default final judgment and dismiss the petition were denied, after tenant had failed to appear on the return dates. On May 25, 2012, tenant was evicted from her apartment.
By OSCs returnable in May and June 2012, tenant sought, among other things, to stay landlord from reletting the apartment and to be provided access to the apartment for the limited purpose of obtaining her possessions. The Civil Court signed the OSCs and, among other things, directed landlord to allow tenant access to the apartment on May 29, 2012, June 5, 2012 and June 15, 2012. After tenant failed to appear on the return dates of the OSCs, tenant's motions were denied. Thereafter, each of tenant's subsequently filed OSCs seeking, among other things, to stay the reletting of the apartment, was refused. By notice of motion returnable October 2, 2012, tenant moved to, among other things, hold landlord in contempt of court for its failure to comply with the prior court orders directing it to provide tenant with access to the apartment, to vacate the default final judgment, and to restore her to possession of the apartment. By order dated October 2, 2012, the Civil Court denied tenant's motion. This appeal by tenant ensued.
Upon a review of the record, we find that the Civil Court did not err in refusing to punish landlord for its alleged contempt of court for failing to comply with prior court orders, since tenant's written motion failed to comply with the relevant notice and warning provisions of Judiciary Law § 756 (see e.g. State Farm Fire & Cas. v Parking Sys. Valet Serv., 85 AD3d 761, [*2]764-765 [2011]). Moreover, tenant was not entitled to vacatur of the default final judgment since she failed to demonstrate reasonable excuses for her failure to appear on all of the return dates of her prior motions to vacate, as well as a meritorious defense to the proceeding (see CPLR 5015 [a] [1]). Tenant's remaining contentions lack merit or are unpreserved for appellate review.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: July 01, 2014
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