The following e-filed documents, listed by NYSCEF document number (Motion 002) 156, 157, 158, 159 were read on this motion to/for VACATE — DECISION/ORDER/JUDGMENT/AWARD. DECISION+ ORDER ON MOTION Upon the foregoing documents, it is Defendant Karina Martinez moves by order to show1 to vacate the default judgment against her, which was entered on September 28, 2022 (NYSCEF Doc No. [NYSCEF] 149, Decision and Order.) Under CPLR 5015, a party seeking to vacate a default judgment must demonstrate both a reasonable excuse for the default and a meritorious defense to the action. (See e.g., Eugene Di Lorenzo, Inc. v. AC Dutton Lumber Co., Inc., 67 NY2d 138, 141 [1986].) For the reasons stated on the record on October 17, 2022, the motion is denied. This court’s September 28, 2022 Order and Judgment is stayed for 30 days, until November 15, 2022, to give Ms. Martinez and her two sons time to find a new home, after which plaintiff may proceed with the eviction. This is an ejectment action commenced by plaintiff, Harlem 133 Owner, LLC, the owner of the real property located at 308- 310 West 133rd Street, New York, New York 10030 (Property). (NYSCEF 2, Complaint 1 .) On March 18, 2019, plaintiff made a loan to W133 Owner, LLC (Borrower) in the amount of $26,000,000 (Loan). (Id. 35.) The loan was guaranteed by Borrower’s principal Levi Balkany. (Id. 44.) The Loan was contingent on Borrower’s representation that the Property is only permitted to be “used exclusively as a residential Condominium property.” (Id. 37; NYSCEF 3, Loan Agreement, §4.1.20.) Borrower agreed it “may not enter into any Lease…without the prior written consent of Lender.” (NYSCEF 2, Complaint 39; NYSCEF 3, Loan Agreement §5.1.17[a].) Borrower defaulted under the Loan Documents for leasing in violation of the Loan Documents, and in violation of N.Y.C. Admin. Code §27-2097 (barring unregistered rental establishments). (NYSCEF 2, Complaint 40.) On June 5, 2020, Lender commenced an action against Borrower and co-defendant guarantor Balkany in this court, captioned Harlem 133 Lender, LLC v. W133 Owner, LLC, et al., Index No. 652300/2020 (State Court Action), asserting three causes of action: (1) breach of contract; (2) injunctive relief enjoining and restraining Borrower and Balkany from continuing leasing and directing Borrower and Balkany to advise interested parties that any lease purportedly executed in violation of the Loan Documents is void; and (3) appointing a receiver. (NYSCEF 2, Complaint 44.) On June 16, 2020, the court enjoined the Borrower, Balkany, or anyone else from “transferring, leasing, using, misusing, or otherwise encumbering the Property.” (NYSCEF 5, June 16, 2020 Order to Show Cause.) Borrower and Balkany admitted to leasing Property units without Lender’s permission, thereby breaching the terms of the Loan Documents. (NYSCEF 6, July 13, 2020 Decision and Order at 1.) The Borrower filed for bankruptcy in the EDNY on July 16, 2020. (NYSCEF 2, Complaint 49 [In re W133 Owner LLC, Case No. 20-42637-nhl].) The Bankruptcy Court rejected the unexpired leases. (Id. 54; NYSCEF 8, Findings of Fact.) Plaintiff initiated this action on March 23, 2022 against 35 unknowing tenants who leased the premises from Borrower and Balkany with the assistance of New York City agencies.2 (NYSCEF 1 and 2, Summons and Complaint.) On March 29, 2022, plaintiff’s process server, personally served the complaint, upon Ms. Martinez, pursuant to CPLR 320(a), requiring an answer or appearance by April 18, 2022. (NYSCEF 20, Affidavit of Service.) In an October 8, 2022 affidavit, Christine Perez, Ms. Martinez’s sister, states that she mailed the answer on May 10, 2022 to Meisel, plaintiff’s attorney in this action as directed by the Summons. (NYSCEF 156, Perez Affidavit at 8/9.3) Meisel denies receipt of Ms. Martinez’s answer. (NYSCEF 47, Meisel Aff 12.) In addition to being late, to date, the answer has not been provided to the court. Ms. Martinez has not provided the court with a reasonable excuse. Plaintiff served Ms. Martinez with the default motion on June 3, 2022. (NYSCEF 60, Affidavit of Service.) Ms. Martinez failed to oppose the motion or contact the court or appear for the argument on September 26, 2022. Ms. Martinez has not provided any explanation for failing to respond to the default motion. Ms. Martinez also has no meritorious defense. She has no right to occupy the condominium unit because (a) she unknowingly entered into occupancy in violation of this Court’s TRO; (b) any purported lease which she entered into was invalid and void; and (c) even if the lease was valid at some point, it was rejected by the Bankruptcy Court. (NYSCEF 8, 9.) Accordingly, it is ORDERED that the TRO is vacated; and it is further ORDERED that the motion to vacate the default is denied; and it is further ORDERED that this court’s September 28, 2022 Order and Judgment (NYSCEF 161) is stayed as to Karina Martinez until November 15, 2022. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: October 19, 2022
