1200 C LLC v Clarke

[*1] 1200 C LLC v Clarke 2013 NY Slip Op 50278(U) Decided on February 26, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 26, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Torres, J.P., Schoenfeld, Shulman, JJ
570461/12.

1200 C LLC, Petitioner-Landlord-Respondent, - -

against

Maxine Clarke, Respondent-Tenant-Appellant, "John Doe" and/or "Jane Doe," Respondent-Undertenant.

Tenant appeals from (1) a default final judgment of the Civil Court of the City of New York, Bronx County (Brenda S. Spears, J.), dated February 1, 2012, which, after inquest, awarded landlord possession in a holdover summary proceeding; (2) an order (same court and Judge), dated February 8, 2012, which denied tenant's motion to vacate the default final judgment; and (3) an order (same court and Judge), dated March 16, 2012, which denied her motion for leave to renew and reargue the February 8, 2012 order.

Per Curiam.

Order (Brenda S. Spears, J.), dated March 16, 2012, reversed, without costs, motion for renewal granted, and upon renewal, default final judgment vacated, and matter remanded for further proceedings on the holdover petition. Appeal from order (Brenda Spears, J.), dated February 8, 2012, dismissed, without costs, as academic. Appeal from default final judgment (Brenda Spears, J.), dated March 12, 2012, dismissed, without costs, as taken from a nonappealable paper (see CPLR 5511).

The requirement that a motion for leave to renew be based upon newly-discovered facts is a flexible one, and a court, in its discretion, may grant renewal upon facts known to the moving party at the time of the original motion (see Petsako v Zweig, 8 AD3d 355, 356 [2004]; 38 Holding Corp. v City of New York, 179 AD2d 486, 488 [1992]). The circumstances here present warrant the grant of the long-term, rent stabilized tenant's renewal motion and, upon renewal, the grant of her prior motion to vacate her isolated default in defending against the holdover petition. Tenant, who initially moved, pro se, for vacatur relief on the same day of her default, showed that her failure to appear was the result of illness and, as reflected in her renewal papers, that she has meritorious defenses to the landlord's eviction claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 26, 2013