By: Shulman, P.J., Gonzalez, Edmead, JJ.18-050. 116 JOHN STREET OWNER, LLC, pet-lan-res, v. CHEA KIM AND SU KIM C/O FULTON STREET ART GALLERY, INC., res-ten-app — Order (Nancy M. Bannon, J.), entered September 23, 2013, modified to the extent of vacating the monetary portion of the default final judgment and remanding the matter for a new inquest on damages and entry of an amended final judgment; as modified, order affirmed, with $10 costs.Tenants’ motion to vacate the default final judgment for lack of jurisdiction was properly denied. The affidavit of service demonstrates that substituted service was properly made pursuant to RPAPL 735(1), by delivery of the papers to an employee of the subject art gallery (see 113 Downtown LLC v. B & G Enterprises of Staten Island Inc., 2002 NY Slip Op 50355[U] [App Term, 1st Dept 2002]). Tenants’ conclusory assertions were insufficient to require a hearing or to support a conclusion of improper service (see Matter of de Sanchez, 57 AD3d 452, 454 [2008]).Civil Court also providently exercised its discretion in denying tenants’ CPLR 5015(a)(1) motion to vacate their default as to liability, since they did not demonstrate a reasonable excuse for their substantial (eighteen-month) delay in moving for such relief (see Caba v. Rai, 63 AD3d 578, 581-582 [2009]). Tenants also failed to demonstrate a meritorious defense based upon the terms of an unsigned and undated “assignment and assumption of lease” and guarantee (see 185 Madison Assoc. v. Ryan, 174 AD2d 461 [1991]), which, in any event, made tenants “fully and primarily liable” to landlord for the “obligations under the lease.” Nor did tenants submit any evidence whatsoever indicating that landlord expressly or impliedly agreed to release them from their obligation to pay rent (see 1689 First Ave., Inc. v. Zhifeng Zheng, 25 Misc 3d 24, 25 [App Term, 1st Dept 2009]).Nevertheless, in the exercise of our inherent authority to review the amount of damages awarded on default (see Quigley v. Coco’s Water Café, Inc., 43 AD3d 1132, 1133 [2007]), we remand the matter to Civil Court for a new inquest on damages. The monetary portion of the final judgment appears to be excessive, given the amount of rent set forth in the lease and the monthly tenancy, and there is no indication how the award was calculated (see Gecaj v. Gjonaj Realty & Mgt. Corp., 149 AD3d 600, 608 [2017]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.May 30, 2018
By: Shulman, P.J., Gonzalez, Edmead, JJ.18-015. 307 W. 82ND ST. HOUSING CORP., pet-lan-app, v. NILESH ZACHARIAS, PREETA SINHA, “JOHN DOE” AND “JANE DOE,” res-ten-res — Order (Anne Katz, J.), entered May 26, 2017, reversed, with $10 costs, tenants’ motion to dismiss denied, petition reinstated and matter remanded for a new trial.This holdover summary proceeding should not have been dismissed at the close of landlord’s case. Contrary to the conclusion reached below, landlord proved the existence of a proprietary lease for tenants’ apartment. Accepted as true and accorded the benefit of every favorable inference (see Szczerbiak v. Pilat, 90 NY2d 553, 556 [1997]), landlord’s as yet unrebutted evidence established that the subject cooperative consists of two adjacent buildings, 307 West 82nd Street and 309 West 82nd Street; that tenants reside in apartment C at 309 West 82nd Street; and that the proprietary lease allocated to tenants’ apartment describes the premises as “9.C,” a shorthand designation to distinguish apartment C at 309 W. 82nd Street from apartment C at 307 W. 82nd Street, the latter apartment being designated as “7.C” in the respective lease to that apartment. This testimony was sufficient to demonstrate at this juncture that the proprietary lease proffered by landlord, which was signed by tenants and which designated the premises “9.C,” was the lease for the subject apartment.Nor was dismissal warranted based on landlord’s description of the premises in the Notice of Default and in the pleadings as apartment “C” at 309 West 82nd Street. Based upon landlord’s as yet unrebutted testimony that there is only one “apartment C” at 309 West 82nd Street and that tenants reside in this apartment, the description was sufficient to enable the marshal to locate the premises (see US Airways, Inc. v. Everything Yogurt Brands, Inc., 18 Misc 3d 136[A], 2008 NY Slip Op 50279[U] [App Term, 2d and 11th Jud Dists 2008]). Nor could this description have materially misled or confused tenants, or hindered the preparation of their defense (see 190 Riverside Dr. v. Nosei, 185 Misc 2d 696 [2000]; see also 601 W. Realty, LLC v. Mao Chu Zheng, 54 Misc 3d 145[A], 2017 NY Slip Op 50257[U] [App Term, 1st Dept 2017]). We would also note that tenants did not object to the description of the premises in their answer or in their prior motion challenging the sufficiency of the Notice of Default.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.May 30, 2018
