Tracey Towers Assoc. v Cobblah

[*1] Tracey Towers Assoc. v Cobblah 2010 NY Slip Op 50061(U) [26 Misc 3d 132(A)] Decided on January 19, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 19, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, JJ
570694/09.

Tracey Towers Associates, Petitioner-Landlord-Appellant, - -

against

Doris Cobblah, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, Bronx County (Lydia C. Lai, J.), dated March 13, 2009, which denied its motion for entry of a default judgment and issuance of a warrant of eviction in a nonpayment summary proceeding.

Per Curiam.

Order (Lydia C. Lai, J.), dated March 13, 2009, affirmed, without costs.

Civil Court properly denied landlord's motion for a default judgment and warrant of eviction on the ground that landlord failed to submit sufficient evidence that tenant was not serving in the military (see Soldiers' and Sailors' Civil Relief Act of 1940 [50 USC Appendix § 521]). The conclusory, hearsay affidavit of an employee of landlord's law firm was not competent evidence of tenant's military status. While landlord also submitted a document from the Department of Defense Manpower Data Center suggesting that tenant was not "on active duty," landlord failed to offer any evidence demonstrating what information (other than tenant's first and last name) it provided to the Department to obtain that document (cf. 363 Assoc., LLC v Sharhan, 2 Misc 3d 928 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: January 19, 2010