Oakdale Manor Owners, Inc. v Raimondi

[*1] Oakdale Manor Owners, Inc. v Raimondi 2015 NY Slip Op 51754(U) Decided on November 30, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TOLBERT, J.P., IANNACCI and CONNOLLY, JJ.
2014-1258 RO C

Oakdale Manor Owners, Inc., Respondent,

against

Harriet Raimondi, Tenant-Appellant, Marc Raimondi, Undertenant-Appellant, -and- "JOHN DOE" and "JANE DOE", Undertenants.

Appeal from an order of the Justice Court of the Village of Suffern, Rockland County (Stephanie Furgang Adwar, J.), dated April 11, 2014. The order denied a motion by tenant Harriet Raimondi and undertenant Marc Raimondi to vacate a default judgment entered pursuant to an order granting landlord's unopposed motion for attorney's fees and costs in a holdover summary proceeding.

ORDERED that the order is reversed, without costs, the motion by tenant Harriet Raimondi and undertenant Marc Raimondi to vacate the default judgment is granted, and, upon such vacatur, landlord's motion for attorney's fees and costs is denied.

In this holdover proceeding, tenant Harriet Raimondi and her son, undertenant Marc Raimondi, appeal from an order which denied their motion to vacate a default judgment entered pursuant to an order granting landlord's unopposed motion for attorney's fees and costs.

It is well settled that a party seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and the existence of a meritorious cause of action or defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Scarlett v McCarthy, 2 AD3d 623 [2003]). We find that the attorney for tenant and undertenant provided a detailed and credible excuse of law office failure which was sufficient to excuse tenant's default (see CPLR 2005; Estrada v Selman, 130 AD3d 562 [2015]; Scarlett v McCarthy, 2 AD3d 623). With respect to a meritorious defense, as landlord did not obtain a final judgment of possession, it did not prevail "with respect to the central relief sought, that is, a possessory judgment" and, consequently, was not entitled to an award of attorney's fees (Nestor v [*2]McDowell, 81 NY2d 410, 416 [1993]; see Fairview Hous., LLC v Dickens, 39 Misc 3d 146[A], 2013 NY Slip Op 50848[U] [App Term, 9th & 10th Jud Dists 2013]; Babylon Vil. Equities v Mitchell, 11 Misc 3d 84 [App Term, 9th & 10th Jud Dists 2006]). In any event, undertenant Marc Raimondi is not a party to the lease and, thus, has no statutory or contractual obligation to pay attorney's fees (see 67-15 102nd St., LLC v Whitman-Gross, 43 Misc 3d 135[A], 2014 NY Slip Op 50659[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is reversed, the motion by tenant Harriet Raimondi and undertenant Marc Raimondi to vacate the default judgment is granted, and, upon such vacatur, landlord's motion for attorney's fees and costs is denied.

Tolbert, J.P., Iannacci and Connolly, JJ., concur.

Decision Date: November 30, 2015