Paul Robeson Houses Assoc. v Francis

[*1] Paul Robeson Houses Assoc. v Francis 2020 NY Slip Op 51527(U) Decided on December 18, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 18, 2020
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Cooper, J.P., Higgitt, McShan, JJ.
570164/20

Paul Robeson Houses Associates, Plaintiff-Respondent,

against

Laverne Francis, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Denise M. Dominguez, J.), entered January 3, 2020, which denied her motion to renew a prior order denying her motion to vacate a default judgment.

Per Curiam.

Order (Denise M. Dominguez, J.), entered January 3, 2020, reversed, without costs, renewal granted, and upon renewal, default judgment vacated on condition that within 60 days after service of a copy of this order with notice of entry, defendant tenders $150 to plaintiff.

Although renewal motions generally should be based on newly discovered facts that could not have been offered on the prior motion (see CPLR 2221[e]), courts have discretion to relax this requirement and grant such a motion in the interest of justice (see Mejia v Nanni, 307 AD2d 870, 871 [2003]). Under the unique circumstances here, and to achieve substantial fairness (see Tishman Constr. Corp. of NY v City of New York, 280 AD2d 374, 376-377 [2001]), we grant defendant's renewed motion to vacate the default judgment, since defendant offered a "reasonable justification" for failing to submit the new evidence on her original pro se motion and the new evidence "would change the prior determination" (CPLR 2221[e][2],[3]). In this regard, defendant set forth a reasonable excuse for defaulting on plaintiff's March 15, 2017 motion to reinstate the default judgment, inasmuch as that motion was served at a prior address and not served upon defendant at her current residence, the address designated in the parties' September 1998 stipulation of settlement.

Defendant also established a meritorious defense to the underlying motion. In the September 1998 stipulation settling this action, defendant agreed to pay a total of $3,500, by an initial $1,500 payment and monthly installments until the balance was satisfied. In the event of a breach, defendant could enter judgment for $7,370, plus interest, less any payments made by defendant under the stipulation.

It is undisputed that, except for the final payment of the $150 balance due under the stipulation, defendant tendered and plaintiff accepted all installment payments. Although the [*2]final payment was tendered by defendant, it was rejected as untimely by plaintiff.

In these circumstances, and considering defendant's overall compliance with the stipulation, the minor nature of the default and the harsh result which would obtain upon literal enforcement of the stipulation, to wit, a judgment in an amount far greater than the negotiated settlement (see Bank of NY v Forlini, 220 AD2d 377, 378 [1995]), we afford defendant the opportunity to make full payment of the final $150 payment due, in full satisfaction of the stipulation of settlement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 18, 2020