Jones v Jones

[*1] Jones v Jones 2014 NY Slip Op 50842(U) Decided on May 30, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570225/13

Wayne J. Jones, Petitioner-Respondent,

against

Robert Flynn Jones, Respondent-Appellant.

Respondent Robert Jones appeals from an order of the Civil Court of the City of New York, Bronx County (Jaya K. Madhavan, J.), dated February 13, 2013, which denied his motion to vacate a default final judgment issued against him in a holdover summary proceeding.

Per Curiam.

Order (Jaya K. Madhavan, J.), dated February 13, 2013, reversed, without costs, motion granted, default final judgment vacated, and matter remanded for further proceedings on the holdover petition.

We favorably exercise our discretion and relieve appellant Robert Jones from his default in appearing at the trial of this licensee eviction proceeding instituted by his brother, petitioner Wayne Jones. Appellant's default appears attributable largely to his (now former) counsel's law office failure (see Nunez v Resource Warehousing & Consolidation, 6 AD3d 325, 326 [2004]) and was not shown to have caused petitioner any discernible prejudice (see Board of Mgrs. of Atrium Condominium v West 79th St. Corp., 17 AD3d 108 [2005]). As to a potential meritorious defense, the verified petition filed by petitioner itself discloses that appellant "entered into possession as the child of the prior tenant of record, Dorothy Jones [the parties' mother], in or about 1999" and thereafter "remained in occupancy of the subject premises" until at least May of 2006. These allegations call into doubt both the viability of petitioner's possessory claim based on appellant's alleged status as petitioner's licensee and the efficacy of petitioner's resort to the summary remedy provided for under RPAPL Article 7 (see Rosenstiel v Rosenstiel, 20 AD2d 71 [1963]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: May 30, 2014