1449 Fulton, LLC v. Britton

71 Misc. 3d 135(A), 2021 NY Slip Op 50418(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 7, 2021
• Docket: 2019-1619 K C
• Status: Unpublished

Opinion

1449 Fulton, LLC v Britton (2021 NY Slip Op 50418(U)) [*1]

1449 Fulton, LLC v Britton

2021 NY Slip Op 50418(U) [71 Misc 3d 135(A)]

Decided on May 7, 2021

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This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2019-1619 K C

1449 Fulton, LLC, Respondent,

against

Tiara Britton and Juan Rivera, Appellants.

Tiara Britton and Juan Rivera, appellants pro se. Todd Rothenberg,, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael L. Weisberg, J.), dated October 21, 2019. The order, insofar as appealed from, in effect, denied tenants' motion to vacate a final judgment of that court entered July 1, 2019 upon tenants' failure to appear for trial in a nonpayment summary proceeding.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this nonpayment proceeding, tenants failed to appear on an adjourned trial date, and a default final judgment was entered on July 1, 2019 awarding landlord possession and arrears. Tenants appeal from so much of an order of the Civil Court dated October 21, 2019 as, in effect, denied their motion to vacate the default final judgment and restore the proceeding to the calendar.

As tenants failed to demonstrate a reasonable excuse for their default in appearing at trial (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]), their motion to vacate the default final judgment was properly denied.

We note that we do not consider factual assertions and evidence which are dehors the [*2]record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the order, insofar as appealed from, is affirmed.

ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 7, 2021