337 E 77 LP v. Jawitz

2025 NY Slip Op 30993(U)

• Court: New York Supreme Court, New York County
• Decided: March 28, 2025
• Docket: Index No. 156170/2024
• Status: Unpublished

Opinion

337 E 77 LP v Jawitz 2025 NY Slip Op 30993(U) March 28, 2025 Supreme Court, New York County Docket Number: Index No. 156170/2024 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 156170/2024 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 03/28/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 156170/2024 337 E 77 LP MOTION DATE 11/13/2024 Plaintiff, MOTION SEQ. NO. 001 -v- LYNN JAWITZ, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28 were read on this motion to/for JUDGMENT - DEFAULT .

Upon the foregoing documents, plaintiff’s motion is granted as to liability and

defendant’s cross-motion is denied.

Background

337 East 77 LP (“Plaintiff”) leased an apartment to Lynn Jawitz (“Defendant”) in 2016.

The extended lease expired in August of 2019, and Defendant did not vacate the apartment at

that time. Plaintiff brought a holdover proceeding in Housing Court, which was litigated over

several years. In 2023, the parties entered into a stipulation of settlement, which stated that it did

not account for any arrears up through January 31, 2023. Plaintiff alleges that Defendant has not

paid the outstanding arrears leading up to the settlement, nor has Defendant paid the use and

occupancy that was due pursuant to the settlement for the months after the lease expired. In

response, Plaintiff brought the underlying proceeding seeking a money judgment, alleging

breach of contract and unjust enrichment. Plaintiff also seeks legal fees pursuant to the terms of

the lease and the settlement agreement.

Procedural and Service History 156170/2024 337 E 77 LP vs. JAWITZ, LYNN Page 1 of 4 Motion No. 001

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The complaint was filed in July of 2024. According to the affidavit of service, after being

unable to make personal service at Defendant’s address, the summons and complaint were

affixed to the door and mailed to Defendant. According to Defendant’s affidavit, the notice

posted to her door did not contain the summons and complaint. When Defendant did not answer

or otherwise appear in the proceeding, Plaintiff brought the present motion for default judgment

in November of 2024. The notice of motion was mailed to the same address that the summons

and complaint were mailed to, according to the affidavit of service. In December of 2024,

counsel made an appearance for Defendant and requested an adjournment of the motion, which

was granted. The same counsel had represented Defendant in the holdover proceeding, and

Plaintiff’s counsel alleges that they informed Defendant’s counsel of this suit when the

complaint was filed. In January, Defendant cross-moved to deny the default judgment and for an

extension of time to answer.

Reasonable Excuse and Meritorious Defense Is the Applicable Standard

As a threshold matter, Defendant argues that they do not have to establish reasonable

excuse and meritorious defense in opposition to the motion for default judgment, as judgment

has not yet been actually entered. This argument is unavailing. Appellate department precedent

routinely applies the reasonable excuse and meritorious defense standard to instances where a

motion for default judgment is opposed by a cross-motion to deny the default, prior to the

granting of the default judgment. See, e.g., Cedar Grove Capital Partners v. Ehrlich, 227 A.D.3d

539, 539 (1st Dept. 2024); 154 E. 62 LLC v. 156 E. 62nd St. LLC, 159 A.D.3d 498, 498 (1st

Dept. 2018); DeFedericis v. Vince’s Pizza Plus, Inc., 229 A.D.3d 1210, 1211 (4th Dept. 2024).

Therefore, Defendant here is required to establish a reasonable excuse for default.

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Defendant alleges that she did not receive the summons and complaint. Conclusory

denial of service is not sufficient to rebut the presumption of service created by an affidavit of

service. Country-Wide Ins. Co. v. Power Supply, Inc., 179 A.D.3d 405, 406 (1st Dept. 2020); see

also Matter of Medallion Fin. Corp. v. Rucker, 223 A.D.3d 497, 498 (1st Dept. 2024). The

process server’s ‘nail and mail’ service was properly done according to CPLR § 308(4), and the

presumption of proper service has not been rebutted. Plaintiff has properly made a case for

default judgment on liability, and Defendant has not established a reasonable excuse.

Accordingly, it is hereby

ORDERED and ADJUDGED that plaintiff’s motion for default judgment is granted as to

liability; and it is further

ADJUDGED that defendant’s cross-motion is denied; and it is further

ORDERED that an assessment of damages against defendant Lynn Jawitz is directed, and

it is further

ORDERED that a copy of this order with notice of entry be served by the movant upon the

Clerk of the General Clerk’s Office, who is directed, upon the filing of a note of issue and a

certificate of readiness and the payment of proper fees, if any, to place this action on the

appropriate trial calendar for the assessment hereinabove directed; and it is further

ORDERED that such service upon the Clerk of the General Clerk’s Office shall be made

in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk

Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s

website).

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3/28/2025 DATE LYLE E. FRANK, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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