London Terrace Assoc. v. Rubin

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 29, 2017
• Docket: 2017 NYSlipOp 50378(U)
• Status: Published

Opinion

London Terrace Associates, Petitioner-Landlord-Appellant,

against

Mathea C. Rubin, Respondent-Tenant-Respondent, -and- Elliot Millet and Olivia Millet, Respondents-Respondents.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Jack Stoller, J.), dated August 29, 2016, which conditionally granted tenant's motion to vacate the final judgment and warrant of eviction entered upon tenant's failure to pay use and occupancy, pendente lite, pursuant to the terms of a so-ordered stipulation in a holdover summary proceeding.

Per Curiam.

Order (Jack Stoller, J.), dated August 29, 2016, affirmed, with $10 costs.

Civil Court providently exercised its discretion and for good cause vacated the default final judgment entered upon tenant's failure to pay use and occupancy, pendente lite, pursuant to the parties' interim stipulation in this holdover summary proceeding (see Harvey 1390 LLC v Bodenheim, 96 AD3d 664 [2012]). Tenant's failure to timely pay use and occupancy was neither willful nor intentional, tenant has subsequently obtained funds sufficient to pay the amount owed, and the record shows that tenant has a potentially meritorious defense to the claims of nonprimary residence (see generally Okumus v Living Room Steak House, Inc., 112 AD3d 799, 799-800 [2013]). Under these circumstances, and in view of the public policy in favor of resolving disputes on the merits, we find no cause to disturb the motion court's discretionary determination.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 29, 2017