Hudson Overlook LLC v Kyle

Hudson Overlook LLC v Kyle 2003 NY Slip Op 51449(U) Decided on November 18, 2003 Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. Appellate Term, First Department

[*1] This opinion is uncorrected and will not be published in the Official Reports.
Digest-Index Classification:Dismissal and Nonsuit—Vacatur
Decided on November 18, 2003
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM P. McCOOE
HON. PHYLLIS GANGEL-JACOB, Justices.
570257/03

HUDSON OVERLOOK LLC., Petitioner-Landlord-Respondent,

against

WILLIAM . KYLE III, KATHRYN N.

[*2]GILBERT, and MARY A. KYLE, Respondents-Tenants-Appellants.

Tenants appeal from an order of the Civil Court, New York County, dated February 26, 2003 (Kevin C. McClanahan, J.) granting landlord's motion to vacate the dismissal of the nonpayment proceeding and to vacate a default judgment in favor of tenants for attorneys' fees in the sum of $17,775.

PER CURIAM:

Order dated February 26, 2003 (Kevin C. McClanahan, J.) modified so as to provide that the grant of landlord's vacatur motion shall be on condition that within 30 days of service of a copy of this order with notice of entry, landlord's attorneys pay tenants $500 costs; as modified, order affirmed, without costs.

The motion court appropriately granted vacatur relief to landlord inasmuch as the appearance defaults by landlord's counsel were not shown to be willful (see, Martinez v New York City Transit Authority, 183 AD2d 587 [1992]). A facially meritorious rent claim in excess of $7,600 at the inception of the underlying proceeding [*3]has been set forth. We have conditioned vacatur of the default upon the payment of costs to compensate the tenants for the delay and inconvenience sustained.

This constitutes the decision and order of the court.