Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Order to Show Cause and Affidavits Annexed 1 Answering Affidavits 0 Reply Affidavits 0 Decision and Order Upon the foregoing cited papers, the Decision/Order on this motion is as follows: Procedural History: This is a holdover based on an administrative termination of respondent’s lease. The lease was terminated based on a chronic rent delinquency and for violation of the Resident Lease Agreement by having an “Illegal Appliance, Excessive Air Conditioners.” Respondent defaulted on her administrative hearing. In December 2013, New York City Housing Authority (NYCHA) issued a Determination of Status confirming that the tenancy was terminated. This case first appeared on the Court’s calendar on January 27, 2016. The matter was adjourned several times. On May 2, 2016, the case was adjourned by stipulation to “enable respondent to bring proof of stay in Art. 78 proceeding.” On June 16, 2016, respondent did not appear, and the case was adjourned for an inquest. On November 9, 2016, an inquest was held. Petitioner was awarded a final judgment of possession against respondent. Thereafter, petitioner sought to secure a warrant of eviction but the warrant clerk denied the request. On January 24, 2018, this Court granted petitioner’s first motion to correct the zip code in the petition. On November 11, 2018, this Court granted petitioner’s second motion to correct an additional de minimis defect in the petition. Petitioner provided an affirmation of service for each court date. Respondent did not appear on each motion day. On January 7, 2019, respondent filed an Order to Show Cause claiming “I never received any notice from court just the eviction order.” On March 7, 2019, respondent retained Mobilization for Justice, Inc (MFJ) as counsel. The case was adjourned. On May 29, 2019, the Order to Show Cause was denied by the Honorable Brenda Spears. The Court noted that petitioner did not file any written opposition to this Order to Show Cause. Respondent’s counsel did not file any supplemental affirmation to the respondent’s pro-se Order to Show Cause. In June 2019, MFJ filed this Order to Show Cause. The case was adjourned for motion practice. On September 30, 2019, the Court heard arguments. No opposition papers were filed. Respondent argues that the judgment and warrant obtained after an inquest should be vacated pursuant to CPLR 5015(a)(1) and 5015(a)(2)1. CPLR 5015(a)(1) states that the Court may vacate the default judgment upon the ground of excusable default. To vacate a default judgment, a party must establish both a reasonable excuse for the default and a meritorious defense to the underlying proceeding. Respondent alleges she had a reasonable excuse for defaulting (on all court dates) after June 2016 because she “reasonably albeit mistakenly, believed that filing that Article 78 was all she needed to do to resolve the instant proceeding.” Memorandum of Law Respondent states that she attempted to file an Article 78 petition, but there was no court date and she did not follow up on the Article 78 petition. “After I filled out those papers, I did not think I had to go back to Housing Court because I thought the case was now with the Article 78 judge and in Housing Court they told me that I had to do the Article 78 first. I also never received anything else from the Housing Court telling me I had to go back.” Guzman Affidavit Para. 11 On May 2, 2016, respondent had signed a stipulation adjourning the case to June 16, 2016, “to enable respondent to bring proof of stay in Art 78 proceeding.” Respondent’s argument that she was did not think she had to return to court is contrary to the stipulation she signed.2 Respondent also alleges that she did not receive any further instruction or communication from Housing Court. The motion papers seeking to amend the petition (both in 2018) have affirmations of service attached which state that petitioner served both motions, by mail, on the respondent. Respondent was notified of the court dates several times. Discussion: It is well settled that in order to vacate a default, the moving party must show a reasonable excuse for the default and a meritorious defense. What constitutes a reasonable excuse for a default generally lies within the sound discretion of the motion court. Chevalier v. 368 E. 148th St. Assoc., LLC, 80 A.D.3d 411 (1st Dep’t., 2011) The Court found that where the default was not willful or deliberate, and respondent moved quickly to vacate her default, subsequently retained counsel and made a prima facie showing of potentially meritorious defenses, the default judgment should be vacated. East 168th St. Assoc. v. Castillo, 60 Misc. 3d 774. (Civ. Ct. Bx. Co. 2018) In Revlom Assoc. LLC v. Raymond, 2019 N.Y. Slip Op 51872(U), the Appellate Term, lst Dep’t held that the court providently exercised its discretion in denying tenant’s motion to vacate her default since “she did not demonstrate a reasonable excuse for her failure to appear on the adjourned trial date.” The Appellate Term also found that the purported excuse for defaulting on the trial date was “unreasonable in the particular circumstances.” This Court finds that respondent did not establish “a reasonable excuse” for her default. Respondent claims that she was not aware that she had to return to court. The May 2, 2016 stipulation, signed by the respondent, states that she must bring proof of a stay from the Article 78 proceeding that she was supposed to be filing. Respondent agreed that she was to return to court. Furthermore, unlike the Castillo case, supra, respondent did not move quickly to vacate her default. Respondent waited over 3 years, until she got the Notice of Eviction, to return to Court to vacate the default. Respondent’s reason for defaulting is “unreasonable in the particular circumstances.” See Revlom Assoc. LLC v. Raymond. CPLR 5015(a)(1) requires a two-prong test. The two-prong test is an “and” test. Movant must show both an excusable default and a meritorious defense for the default judgment to be vacated. Respondent did not show an excusable default. Where the defaulting party fails to provide an excusable default and meritorious defense the motion seeking to vacate the default judgment should be denied. New York City Hous. Auth. Webster Houses v. Christian, 44 Misc. 3d 1222(A) (Bx. Co. Civ. Ct., 2014) citing Metropolitan Ins. and Annuity Co. v. Eromosele, 10 Misc 3d 141[A], (App. Term 1st Dept., 2006). Respondent does not show an excusable default and, as such, the Court does not need to determine whether a meritorious defense was established. The Court has discretion to vacate or stay a warrant of eviction upon such terms as may be just. Determining whether good cause exists is “entrusted to the sound discretion of the court upon review of the particular facts and circumstances presented.” Harvey 1390 LLC v. Bondheim, 96 A.D.3d 664 (1st Dep’t., 2012). Respondent’s tenancy was terminated due to a chronic rent delinquency. Movant alleges that at the time of the commencement of this proceeding, “Ms. Guzman did not owe much money.” At the time of the commencement of this proceeding, in 2016, the arrears were $1,255.58. On August 13, 2019, parties agreed in a stipulation that the arrears through August 2019 were $14,020.44. Based on the above facts, this Court does not find that good cause exists to vacate the default judgment. Decision: Respondent’s Order to Show Cause seeking to vacate the default judgment is denied. In the interest of justice, the execution of the warrant is stayed through January 31, 2020 for respondent and her family to vacate with dignity. This Decision is being mailed to both sides. This constitutes the Decision and Order of the Court. Dated: November 25, 2019 Bronx, New York
