495 QUINCY LLC v. LADEJOBI (2018)

ORDERED that the order is reversed, without costs, and landlord's motion to vacate the final judgment entered October 31, 2016 upon landlord's failure to appear at trial is granted.

The petition in this holdover proceeding alleges that tenant failed to provide access to the premises to make necessary repairs. Tenant's answer denied this allegation and counterclaimed for breach of the warranty of habitability. On September 19, 2016, after a discussion with tenant, landlord's attorney drafted a stipulation discontinuing the proceeding. Tenant did not sign the stipulation and, according to the Civil Court's decision, the court subsequently “rejected the proposed stipulation and adjourned the trial to October 26, 2016.” Landlord did not appear on that day. The Civil Court dismissed the petition, and, following an inquest, awarded tenant the sum of $3,400 on his counterclaim.

Thereafter, landlord's counsel moved to vacate the default final judgment pursuant to CPLR 5015 (a) (1). In a supporting affirmation, counsel affirmed that he had left the courtroom prior to the resolution of the stipulation to attend to other matters in the courthouse; that tenant had represented that he would sign the stipulation before the judge; that counsel did not know that tenant had not signed the stipulation on September 19, 2016; that he had returned subsequently to the courtroom to get a copy of the signed stipulation but was unsuccessful in doing so; and that he had been unaware that a trial had been scheduled until he had received a copy of the decision after inquest in the mail. Landlord's agent averred in a supporting affidavit that the repairs at issue had not been made because tenant had refused access. Tenant did not submit opposition to the motion. The Civil Court denied landlord's motion.

Under the circumstances presented, we find that landlord's attorney provided a detailed and credible explanation as to why he had failed to appear on the trial date (see Glover v. Sattan, 43 Misc 3d 132[A], 2014 NY Slip Op 50618[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] ) and that landlord's agent's affidavit provided a potentially meritorious defense to tenant's counterclaim.

Accordingly, the order is reversed and landlord's motion to vacate the final judgment entered October 31, 2016 upon landlord's failure to appear at trial is granted.

ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.