46 Downing St. LLC. v Thompson

[*1] 46 Downing St. LLC. v Thompson 2014 NY Slip Op 51401(U) Decided on September 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
571172/13

46 Downing Street LLC., Petitioner-Landlord-Appellant, -

against

Otto Thompson, Respondent-Tenant-Respondent, - and - "John Doe" and "Kay K. Bourabah" Respondents-Occupant, -and- Tomoko Watabe, Tenant in Possession-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), dated October 7, 2013, which conditionally granted tenant's motion to vacate a default final judgment in a holdover summary proceeding.

Per Curiam.

Order (Sabrina B. Kraus, J.), dated October 7, 2013, affirmed, with $10 costs.

Civil Court providently exercised its discretion in conditionally granting tenant's post-eviction motion to vacate the default final judgment issued against him in this holdover summary proceeding. Tenant's incarceration and his demonstrated efforts to respond to the petition while in prison provided a reasonable excuse for his failure to appear to defend the proceeding (see Brown v City of New York, 105 AD3d 420 [2013]), and tenant's submissions below were sufficient to establish a potentially meritorious defense to the landlord's underlying illegal sublet claim. Further, on this record, and considering the (roughly 50-year) duration of the rent controlled tenancy, we are not prepared to say that tenant's delay was fatal to his vacatur application.

In sustaining Civil Court's discretionary determination to conditionally grant vacatur relief, we express no view as to the availability and appropriateness of a restoration remedy herein. To the extent the motion court appears to have signaled an intention to restore the tenant to possession in the event he "prevails at trial," any such determination was premature at this [*2]juncture. "[T]he fashioning of an appropriate remedy, if any, must await a more developed record" (Benjamin Scott Corp. v Lydia, 23 Misc 3d 128[A], 2009 NY Slip Op 50597[U] [App Term, 1st Dept 2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 22, 2014