Jozwicki v Caraballo

[*1] Jozwicki v Caraballo 2010 NY Slip Op 50833(U) [27 Misc 3d 136(A)] Decided on May 10, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 10, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2009-917 K C.

Stansilaw Jozwicki, Appellant,

against

Julio Caraballo, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Inez Hoyos, J.), entered January 16, 2008. The order, after a hearing, granted tenant's motion to vacate a default final judgment and warrant, and restored tenant to possession.

ORDERED that the order is affirmed without costs.

In a stipulation entered into in this nonpayment proceeding on September 15, 2007, it was agreed that the matter would be adjourned to October 16, 2007, since tenant had provided landlord with rent receipts as proof of his claim that he had paid the rents sought, and that, upon confirming the payments, landlord would withdraw the petition.

When tenant failed to appear in court on the adjourned date of October 16, 2007, a default was taken against him, and he was subsequently evicted. Thereafter, tenant moved to vacate the default final judgment and warrant, and to be restored to possession, asserting that he had believed that "everything was taken care of" after he had given the money order receipts to landlord. Landlord appeals from the order of the Civil Court granting tenant's motion to vacate the default final judgment and warrant, and restoring him to possession.

Tenant established a meritorious defense to the proceeding by providing evidence of payment of the rent arrears sought in the petition. In addition, he established a reasonable excuse for his default in appearing on the adjourned court date, since the stipulation adjourning the case and requiring landlord to confirm tenant's payments of rent arrears was ambiguous as to whether tenant was required to appear on the adjourned date. Thus, the court properly granted the branch [*2]of the motion seeking to vacate the default final judgment and warrant (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Moreover, the Civil Court was properly authorized, upon vacating the default final judgment and warrant, to restore tenant to possession (CPLR 5015 [d]; CCA 212; see 467 42nd St. v Decker, 186 Misc 2d 439 [App Term, 2d & 11th Jud Dists 2000]). Accordingly, the order vacating the default final judgment and warrant, and restoring tenant to possession is affirmed.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 10, 2010