Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause Answering Affidavits 2 Replying Affidavits 3 Exhibits Supplemental Affidavit DECISION/ORDER Upon the foregoing papers, plaintiff’s motion for re-argument of its motion for a summary judgment, pursuant to CPLR §3212, is decided as follows: On May 10, 2021, plaintiff commenced an action seeking a money judgment on a claim for unpaid rent arrears and other expenses. The defendant was a previous residential tenant. On June 23, 2021, defendant filed an answer with various defenses. Defendant failed to appear at scheduled conferences, and an inquest was held on December 15, 2022, and a default judgment ensued. Defendant retained an attorney, and successfully vacated the default judgment. Eventually, plaintiff brought a motion for summary judgment. On February 27, 2024, that motion was denied, based on the non appearance of the moving party. Since there was no decision on the merits, there is no need for a motion for re-argument. Plaintiff produces the affidavit of Margaret McCormack, plaintiff’s “managing member”. Her affidavit states that the defendant moved in pursuant to a written lease. She states that defendant moved out prior to the expiration of the lease. Plaintiff claims a sum certain for the monthly unpaid rent which accrued. Defendant claims the defense of breach of warranty of habitability, and that she was constructively evicted, as her ten year old son suffered ailments because of the vermin condition. Defendant also counterclaims for return of the security deposit, plus attorney fees. Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it should be employed only when there is no doubt as to the absence of facts, Kolivas v. Kirchoff, 14 A.D. 3d 493 (2nd Dept. 2005). The function of the court on a motion for summary judgment is not to resolve issues of fact, or determine issues of credibility, but merely to determine if such issues exist, Anyanwu v. Johnson, 276 A.D. 2d 572, (2nd Dept. 2000). Accordingly, plaintiff’s motion for summary judgment is denied because of the conflicting affidavits regarding the facts surrounding the early vacating of the apartment prior to the expiration of the lease. This constitutes the decision and order of the Court. Dated: May 8, 2024
