Zabolotny v Andersen

[*1] Zabolotny v Andersen 2008 NY Slip Op 50517(U) [19 Misc 3d 128(A)] Decided on March 7, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 7, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : McCABE, J.P., TANENBAUM and MOLIA, JJ
2006-1801 S C.

Denise Zabolotny, Respondent,

against

Annie Andersen, Appellant, -and- Rita Andersen, Paul Catone, Anthony Catone and Vincenzo Catone, Tenants.

Appeal from an order of the District Court of Suffolk County, Sixth District (Gigi A. Spelman, J.), dated September 27, 2006. The order denied a motion by tenant Annie Andersen to vacate a default final judgment as against her.

Order reversed without costs and matter remanded to the court below for a determination de novo of tenant Annie Andersen's motion to vacate a default final judgment as against her, in accordance with the following memorandum.

In this nonpayment proceeding, tenant Annie Andersen, a Section 8 tenant, moved, by order to show cause, to vacate a default final judgment. Tenant asserted, inter alia, that she had not received service of the notice of petition and petition and that the subject house had failed Section 8 inspection because landlord had failed to make repairs. Upon signing the order to show cause, the court directed tenant to deposit into court the arrears sought in the petition by two days before the return date of the motion or else her motion would be "summarily denied." On the return date of the motion, the court, after inquiring of tenant as to whether she had made the deposit and learning that she had not, denied the motion.

In our view, it was error for the court to refuse to entertain tenant's motion on the merits (cf. Goldheart Intl. v Vulcan Constr. Corp., 124 AD2d 507 [1986]; Matter of Grisi v Shainswit, 119 AD2d 418, 422 [1986]). While the granting of a motion to vacate a default judgment may, [*2]in certain circumstances (not involving a lack of jurisdiction), be conditioned upon the making of a deposit of the judgment amount (see Weinstein-Korn-Miller, NY Civ Prac ¶¶ 5015.10, 5015.14), the right to be heard on the merits of a motion to vacate a default judgment cannot be so conditioned (cf. Rizutto v Novack, 2002 NY Slip Op 50701[U] [App Term, 9th & 10th Jud Dists 2002] [it was error to deny the tenants a trial based upon their default in making a court-ordered deposit]; Stepping Stones Assoc. v Seymour, 184 Misc 2d 990 [App Term, 9th & 10th Jud Dists 2000] [same]; see generally Bell v Burson, 402 US 535 [1971]; Boddie v Connecticut, 401 US 371 [1971] [the right to be heard cannot be conditioned upon the payment of fees]). Accordingly, the order denying tenant Annie Andersen's motion based on her failure to make the court-ordered deposit is reversed and the matter remanded for a determination of the motion on the merits.

McCabe, J.P., Tanenbaum and Molia, JJ., concur.