Surat Realty v Brissett

[*1] Surat Realty v Brissett 2007 NY Slip Op 51166(U) [15 Misc 3d 144(A)] Decided on June 4, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-1050 K C.

Surat Realty, Respondent,

against

Alice Brissett, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered May 1, 2006. The order denied defendant's motion to vacate a judgment entered on default.

Order reversed without costs, defendant's motion to vacate the default judgment granted and matter remanded to the court below for all further proceedings.

Plaintiff instituted this small claims action to recover $1,618 for "garage space rent on 05-01-2003." Following an inquest, the court awarded judgment in favor of plaintiff in the principal sum of $1,618. Subsequent thereto, defendant moved to vacate the judgment. The motion was unopposed. By order entered May 1, 2006, the court denied the motion and the instant appeal by defendant ensued.

In her affidavit in support of the motion, defendant stated that she did not sign a lease with defendant for the garage and that she moved from her old address and did not receive the summons and complaint in time to appear in court. Since defendant set forth an excusable default and sufficient allegations to make out a prima facie showing of a meritorious defense (see CPLR 5015 [a]; Bergen v 791 Park Ave. Corp., 162 AD2d 330 [1990]), the order should be reversed and defendant's motion to vacate the judgment granted.

Pesce, P.J., Golia and Rios, JJ., concur. [*2]
Decision Date: June 4, 2007