Recitation, as required by CPLR §2219(a), of the papers considered in the review of Petitioner’s motion for an order restoring this proceeding to the court’s calendar and Respondent’s cross-motion for an order dismissing this proceeding.Papers NumberedNotice of motion, Affirmation and Exhibits annexed 1Cross-motion, Affirmation, Affidavit and Exhibits annexed 2Affidavit in Support of Motion and in Opposition to Cross-Motion 3Affirmation in Reply 4DECISION/ORDER After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:Petitioner’s motion to vacate the default judgment entered against him is denied. A default judgment may be vacated where the moving party can demonstrate a reasonable excuse for its failure to appear and a meritorious claim in the proceeding. Chevalier v. 368 E. 148th Street Associates, LLC, 80 AD3d 411 (1st Dept 2011).Here, Petitioner’s attorney has presented a reasonable excuse for his default, by failing to appear in court, on August 27, 2018. However, Petitioner has not stated his petition is meritorious. Petitioner’s assertion that he is “the owner of the property trying to be recovered, the Respondents occupy [the premises] and have no lease and have never paid rent” does not adequately state that his cause of action has merit. Petitioner has made no mention of the legal relationship between the parties regarding the subject premises, how that relationship was allegedly terminated, the number of dwelling units in the building in which the apartment that is the subject of this proceeding is located or the regulatory status of the property that permits this type of proceeding to be maintained.Absent these statements by Petitioner in support of his motion, his argument that he will be harmed if the proceeding is not restored to the calendar because he is trying to sell the property and the buyer is demanding it be vacant at the time of sale is not a sufficient demonstration that this proceeding is meritorious.For these reasons, Petitioner’s motion to restore this proceeding to the calendar is denied and the proceeding remains dismissed without prejudice.Additionally, Respondent Michael Patterson’s (“Respondent”) argument that this proceeding should be dismissed, pursuant to RPAPL §741(3), for Petitioner’s asserted failure to adequately identify the premises within the petition lacks merit.The description of an apartment that is the subject of an eviction proceeding must be sufficient to enable a marshal to locate the premises. 307 W. 82nd St. Housing Corp. v. Zacharias, 59 Misc 3d 148(A) (App Term 1st Dept 2017); US Airways, Inc. v. Everything Yogurt Brands, Inc., 18 Misc 3d 136(A) (App Term 2d, 11th & 13th Jud Dist 2008). This petition states the premises as apartment 1 at 721 East 219th Street, Bronx, New York, 10467. There is no dispute there is only one apartment designated as such at the subject premises.Respondent asserts he and his wife “reside” in one room within apartment 1 at the subject building, that his children “reside” in a second room within the apartment and Petitioner “resides” in a third room within the apartment. However, as Petitioner asserts, and was clarified at oral argument, there are no separate rooms with locks on them in the apartment. As Petitioner has stated, “Respondents have free range of the apartment.” What Respondent apparently means in stating he resides in one room, his children reside in another and that Petitioner resides in a third is that they have separate rooms in which they sleep.Under these circumstances, where Petitioner shares the apartment with Respondent and his family as roommates but the various people in the apartment sleep in different bedrooms, RPAPL §741(3) does not require the petition to state the specific bedrooms in which the roommates sleep as the premises from which Petitioner seeks to evict Respondents. The identification of the premises within the petition as “all rooms on the first floor in apt. 1″ at the subject premises is sufficient.Further, there is no indication from the papers submitted by Respondent that the description of the premises given in the petition misled or confused them or hindered the preparation of their defense to the petition. 601 W. Realty, LLC v. Mao Chu Zheng, 54 Misc 3d 145(A) (App Term 1st Dept 2017); 190 Riverside Dr. v. Noesi, 185 Misc 2d 696 (App Term 1st Dept 2000). Moreover, the cases Respondent has cited in support of his motion to dismiss are distinguishable from the factual situation presented herein in that none relate to the living arrangements that have existed within the properly identified apartment that is the subject of this proceeding.For these reasons, Respondent’s cross-motion to dismiss, pursuant to RPAPL §741(3), is denied.This constitutes the decision and order of the court.Dated: February 12, 2019Bronx, New York
