10 E. End Ave. Owners, Inc. v Gordon

[*1] 10 E. End Ave. Owners, Inc. v Gordon 2009 NY Slip Op 50959(U) [23 Misc 3d 139(A)] Decided on May 19, 2009 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
.

10 East End Avenue Owners, Inc., Petitioner-Landlord-Respondent, 570137/08

against

Judith A. Gordon, Respondent-Tenant-Appellant.

Tenant appeals from an order of the Civil Court of the City of New York, New York County (Marcia J. Sikowitz, J.), entered November 9, 2007, which denied her motion to vacate a default final judgment in a nonpayment summary proceeding.

Per Curiam.

Order (Marcia J. Sikowitz, J.), entered November 9, 2007, modified by remitting the matter to Civil Court for a traverse on the issue of service; as modified, order affirmed, without costs.
We agree that tenant failed to establish either a
reasonable excuse for not answering the nonpayment petition or a meritorious defense to landlord's rent claims. However, the court "improperly resolved the issue of service of process on the basis of conflicting affidavits when a traverse hearing was required" (Ananda Capital Partners v Stav Elec. Sys. [1994], 301 AD2d 430 [2003]). "[I]t remains the law in this forum that compliance with statutory service requirements is not obviated by a [tenant's] actual receipt of service" (Matter of 72A Realty Assoc. v New York City Envtl. Control Bd., 275 AD2d 284, 286 [2000], quoting New Hampshire Ins. Co. v Wellesley Capital Partners, 200 AD2d 143, 150 [1994]; see Raschel v Rish, 69 NY2d 694, 697 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 19, 2009