Harris v S.A.S. Accounting & Mgt., Inc.

[*1] Harris v S.A.S. Accounting & Mgt., Inc. 2007 NY Slip Op 51177(U) [15 Misc 3d 145(A)] Decided on June 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2006-887 K C.

Bettina Harris, Respondent,

against

S.A.S. Accounting & Management, Inc., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered March 24, 2006. The order denied tenant's motion to vacate a default final judgment.

Order reversed without costs and tenant's motion to vacate the default final judgment granted.

In this commercial holdover summary proceeding, tenant provided a reasonable excuse for its default in appearing for trial, and demonstrated the existence of a meritorious defense. Generally, the determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the court; however, reversal is
warranted where the court improvidently exercises that discretion (see Levy Williams Constr. Corp. v United States Fire Ins. Co., 280 AD2d 650 [2001]). The record in the present matter does not demonstrate a pattern of willful default or neglect; rather, tenant has vigorously litigated this matter at all times (see Orwell Bldg. Corp. v Bessaha, 5 AD3d 573 [2004]).

Tenant's default on the trial date was due to an excusable miscommunication between counsel (who appeared in the proper courtroom) and tenant's representative (who appeared in a different part) as to the location of the proceedings. Moreover, tenant's representative stated, in an affidavit in support of tenant's motion to vacate the default final judgment entered against it, [*2]that the clerk had advised him to wait in the general part for his attorney, rather than to proceed to the courtroom where the trial was being held (see Zrake v New York City Dept. of Educ., 17 AD3d 603 [2005]). Counsel for tenant left the trial only after the court refused him even a short adjournment to locate his client, a delay that would have caused landlord no prejudice. As tenant was prepared to proceed on the trial date, a short adjournment would have ensured the trial of this matter on the merits, in accordance with public policy, thus possibly avoiding the forfeiture without trial of tens of thousands of dollars worth of renovations to the commercial premises (see Lake Anne Realty Corp. v Sibley, 154
AD2d 349 [1989]; Mack-Cali So. W. Realty Assoc. v Benni's I, 13 Misc 3d 135[A], 2006 NY Slip Op 52038[U] [App Term, 2d & 11th Jud Dists]).

Tenant has alleged throughout these proceedings that it has complied with the conditions in the stipulation of settlement of October 12, 2005. Although landlord contests this contention, a trial is the proper venue in which to determine whether tenant complied with the stipulation's terms. We note that landlord's notice to admit pursuant to CPLR 3123, except for certain requests for the admission of the authenticity of various documents, consists largely, and improperly, of requests to admit various contentions that form the core subject matter of the dispute, in an evident attempt to force tenant to admit the most fundamental and material issues of fact in the litigation (see Washington v Alco Auto Sales, 199 AD2d 165 [1993]), and tenant was under no obligation to respond to these requests (see Miller v Hilman Kelly Co., 177 AD2d 1036 [1991]).

Golia, J.P., Rios and Belen, JJ., concur.