Forest Royal Assoc. v Rothchild

[*1] Forest Royal Assoc. v Rothchild 2003 NY Slip Op 51651(U) Decided on December 19, 2003 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the Official Reports.

Decided on December 19, 2003
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, PJ., ARONIN and RIOS, JJ.
NO. 2003-350 Q C

FOREST ROYAL ASSOCIATES, Appellant, -

against

RICHARD ROTHCHILD, Respondent.

Appeal by plaintiff from an order of the Civil Court, Queens County (E. Walker, J.), entered January 7, 2003, which granted defendant's motion to the extent of vacating his default, striking the case from the inquest calendar and restoring it to the trial calendar, and awarding defendant $50 in costs.

Order unanimously modified by striking the award of $50 costs to defendant and by providing that defendant's motion to, inter alia, vacate his default, strike the action from the inquest calendar and restore the action to the trial calendar is denied; as so modified, affirmed without costs.

In this action to recover for unpaid use and occupancy, defendant failed to appear for trial and the matter was set down for an inquest. Thereafter, defendant moved, inter alia, to vacate his default and restore the action to the trial calendar. A party moving pursuant to CPLR 5015 (a) (1) to vacate an order entered upon his failure to appear or answer must show a reasonable excuse for the default and a meritorious defense (see Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138 [1986]; Matter of Trumbell Ins. Co. v Henriquez, 294 AD2d 369 [2002]; Bums v Casale, 276 AD2d 734 [2000]). While defendant argued in his affidavit of merit that he had a meritorious defense, to wit, he did not live in the subject apartment from April 2001 through November 2001 and, as a result, he did not owe plaintiff use and occupancy for those months, it was established in the underlying holdover proceeding that defendant was living in the subject apartment during the aforementioned months. Therefore, defendant failed to establish a meritorious defense to the action and the lower court improvidently exercised its discretion by vacating defendant's default and restoring the matter to the trial calendar.
Decision Date: December 19, 2003