1710 REALTY LLC v. SCOTT (2024)

ORDERED that the final judgment, insofar as appealed from, is affirmed, without costs.

In this nonprimary-residence holdover proceeding commenced in July 2017, counsel submitted an answer to the petition, purportedly on behalf of tenant, Renet Scott, and her son, Tyrice D. Scott. The answer asserted that Ms. Scott still resided at the premises and interposed several affirmative defenses including, as relevant to this appeal, that Mr. Scott has succession rights. Landlord moved to strike several affirmative defenses, but not the succession rights claim, and Ms. Scott opposed the motion. By order dated December 17, 2017, the Civil Court (Marcia J. Sikowitz, J.) granted the motion and struck all the affirmative defenses, including the succession rights defense, based on the opposition papers’ failure to provide facts to support that defense.

On August 19, 2019, Mr. Scott appeared in the proceeding, represented by his own attorney. Three years after the entry of the December 17, 2017 order, Mr. Scott moved, in December 2020, “pursuant to CPLR 5015 (a), and in the interests of justice,” to vacate so much of that order as, sua sponte, struck “Respondent Tyrice Scott's succession defense.” He alleged that, although he was aware of the proceeding, he had never authorized the attorney who had been appearing in the case, purportedly on his and his mother's behalf, to represent him. He also requested leave to interpose his own answer. By order entered April 25, 2022, the Civil Court (Kevin C. McClanahan, J.) denied Mr. Scott's motion, rejecting Mr. Scott's claim that he had not previously appeared in the proceeding. Landlord then moved for summary judgment. Insofar as is relevant here, Mr. Scott opposed that motion, acknowledging that, in light of the previous order, he had no defenses to litigate at that time, but expressing that he intended to pursue his claim for succession rights on appeal. By order dated September 13, 2022, the Civil Court (Kevin C. McClanahan, J.), insofar as is relevant here, granted landlord's motion. A final judgment was entered on October 28, 2022. Mr. Scott appeals from the September 13, 2022 order, arguing that his motion to vacate so much of the December 17, 2017 order as sua sponte struck “his” succession defense should have been granted. The appeal is deemed to be from so much of the final judgment as was entered against Mr. Scott (see CPLR 5501 [c]).

We note at the outset that an appeal from a final judgment brings up for review any nonfinal judgment or order which necessarily affects the final judgment (CPLR 5501 [a] [1]; see James v Powell, 19 NY2d 249, 256 [1967]; Matter of Rossi v Spano, 26 AD3d 388, 389 [2006]), thereby bringing up for review the order entered April 25, 2022.

If, as Mr. Scott claims, he never authorized the attorney who submitted the answer to represent him, then he was in default in this proceeding for more than two years before he appeared in August 2019, and more than three years before he sought to interpose an answer. Furthermore, in moving to vacate part of the December 17, 2017 order, he sought, in effect, to reinstate an affirmative defense that he, admittedly, had not interposed. If we elect to treat Mr. Scott's motion as, in effect, seeking to open his default in appearing in the proceeding and, thereupon, for leave to interpose a late answer, we would not grant it, as he failed to demonstrate a reasonable excuse for his failure to appear. He admitted that he knew about the proceeding but did not appear until August 2019 and did not seek leave to interpose an answer until more than a year after that (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).

Alternatively, if we reject Mr. Scott's claim that he did not retain the attorney who submitted the original answer and similarly treat the succession rights claim asserted therein as having been validly interposed on his behalf, as the Civil Court in fact did, we would still not grant Mr. Scott any relief since he did not seek to vacate so much of the December 17, 2017 order as struck that defense until three years later. Under the circumstances, the Civil Court did not improvidently exercise its discretion in denying defendant's motion to vacate that order in the interest of substantial justice, especially given that this case does not involve unusual circumstances that would have warranted vacating the order on that basis (see Cox v Marshall, 161 AD3d 1140, 1142 [2018]; Kleynerman v MJGC Home Care, 153 AD3d 1246, 1247 [2017]).

Accordingly, the final judgment, insofar as appealed from, is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.