527 WEST 48TH ST LLC v. STROTZ (2025)

Order (Yekaterina Blinova, J.), dated November 15, 2024, reversed, with $10 costs, motion granted, the default final judgment vacated and the petition dismissed.

Tenant demonstrated a reasonable excuse for failing to timely answer the holdover petition. Tenant's affidavit and documentary proof show that he was out-of-town for the holiday season when conspicuous service was made on December 21, 2023. Tenant also sufficiently demonstrated a potentially meritorious defense that the apartment had been illegally deregulated. We therefore exercise our discretion to vacate the default final judgment.

Moreover, the record shows that landlord failed to “complete” service of the notice of petition and petition by filing proof of service (RPAPL 735 [2] [b]) at least 10 days prior to the date the petition was noticed to be heard, as required by RPAPL 733 (1). Here, the petition was returnable on January 3, 2024, only eight days after the December 26th filing of the affidavit of service. In these circumstances, the petition must be dismissed (see Riverside Syndicate, Inc. v Saltzman, 49 AD3d 402 [2008]; Berkeley Assoc. Co. v Di Nolfi, 122 AD2d 703, 705 [1986], lv dismissed 69 NY2d 804 [1987]). Although asserted for the first time on appeal, we reach this issue because the deficiency is clear on the face of the record and could not have been avoided had it been raised before the motion court (see Balaguer v 1854 Monroe Ave. Hous. Dev. Fund Corp., 71 AD3d 407 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.