Cruz v Diamond

[*1] Cruz v Diamond 2005 NY Slip Op 50187(U) Decided on February 17, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 17, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-455 N C

Javier Cruz, Respondent,

against

Lisa Diamond, Appellant.

Appeal by defendant from an order of the Small Claims Part of the District Court, Nassau County (F. Ricigliano, J.), entered April 10, 2003, denying her motion pursuant to CPLR 5015 to vacate a default judgment entered against her.

Order unanimously affirmed without costs.

In this small claims action seeking the return of a security deposit, defendant failed to establish a reasonable excuse for her failure to appear for trial or a meritorious defense (see CPLR 5015; Putney v Pearlman, 203 AD2d 333 [1994]). On the eve of trial, defendant sent a letter to the court by Federal Express stating, without further detail, that she would not attend the trial because she was "ill," and that she would not be available until after a specified date. The letter arrived in the clerk's office at the time the trial was scheduled to commence. Furthermore, defendant made no further effort to contact the court and provided no documentation of the illness or that she was incapacitated by it (see Siskin v 221 Sullivan St. Realty Corp.,180 AD2d 544 [1992]).

Defendant also failed to establish a meritorious defense. Although she avers that plaintiff may not be entitled to the money because he was one of four tenants named in the lease, it was her duty as landlord and trustee of the security deposit funds to know the source of the funds and to return them as otherwise appropriate to their source at the end of the lease term (see General Obligations Law § 7-103; Mancini v DMJ Mgmt. Corp., 195 Misc 2d 656 [Mount Vernon City [*2]Court 2003]). She provides no evidence, other than her own statement, that an oral agreement was made to return the funds to plaintiff's estranged wife, to demonstrate that plaintiff was not entitled to return of an appropriate portion of the security deposit.
Decision Date: February 17, 2005