In-Towne Shopping Ctrs. Co. v Demottie

[*1] In-Towne Shopping Ctrs. Co. v Demottie 2007 NY Slip Op 52200(U) [17 Misc 3d 134(A)] Decided on November 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-1001 S C.

In-Towne Shopping Centers Co., Respondent,

against

Susanne DeMottie d/b/a SLENDER LADY, Appellant.

Appeal from (1) a final judgment of the District Court of Suffolk County, Sixth District (James P. Flanagan, J.), entered December 8, 2005, and (2) an order of the same court (Gigi A. Spelman, J.), dated January 20, 2006. The final judgment awarded landlord possession and the sum of $22,501 in a nonpayment summary proceeding. The order denied tenant's motion to vacate the final judgment.

Appeal from final judgment dismissed as moot.

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

In this commercial nonpayment proceeding, the petition seeks possession and the sum of $22,496.18, representing six months of rental arrears, late fees and legal fees, plus costs. The notice of petition demands that an answer be made three days before the return date of the petition (see RPAPL 743). Tenant did not answer three days before the return date but appeared without an attorney on the return date of the petition and requested an adjournment to obtain counsel. On the adjourned date, tenant appeared with counsel, ready to proceed, but landlord was not ready to proceed. Nevertheless, the court now elected to hold tenant in default, apparently because tenant's counsel made a facial gesture at landlord's counsel, and awarded landlord a final judgment for possession and the arrears sought. Thereafter, tenant moved to vacate the final judgment, but the court denied the motion without comment. This appeal ensued.

Since tenant, at the initial appearance, was not held in default but was granted an adjournment to obtain counsel, the court implicitly extended tenant's time to answer so that she [*2]could do so with the benefit of counsel (see City of New York v Candelario, 156 Misc 2d 330 [App Term, 2d & 11th Jud Dists 1993] [an adjournment for the tenant to obtain counsel in effect extends the tenant's time to answer], affd in part and revd in part on other grounds 223 AD2d 617 [1996]). Since tenant's time to answer had been extended, it was error for the court, on the trial date, to hold tenant in default for failing to answer. Moreover, in view of the totality of the circumstances, the proceeding should be litigated on the merits, since public policy favors the resolution of cases on the merits, and there is no evidence that landlord would be prejudiced by vacating the final judgment (see Ahmad v Aniolowiski, 28 AD3d 692 [2006]; Bunch v Dollar Budget, Inc., 12 AD3d 391 [2004]). Accordingly, the order denying tenant's motion to vacate the final judgment is reversed and tenant's motion to vacate the judgment is granted.

We note, however, that tenant's argument on appeal that the petition should be dismissed because its verification was defective is without merit. A review of the record shows that tenant did not diligently reject the pleading (CPLR 3022). Thus, any objection to the verification was waived (see Matter of Giambra v Commissioner of Motor Vehicles of State of N.Y., 46 NY2d 743 [1978]). In any event, the petition complied with the verification requirements of RPAPL 741.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 19, 2007