Default by Incarcerated Tenant Excused

Landlord sued to evict rent-controlled tenant for unlawful subletting without landlord's permission. The court ruled for landlord based on tenant's failure to appear in court. Tenant later asked the court to vacate the default judgment and restore him to possession. The court ruled for tenant in part. Tenant's default was excusable because he was in jail at the time of the court date. Due process required reopening the case. Tenant's failure to appear wasn't willful, he made many and varied attempts to respond to the eviction proceeding, he wasn't given a chance to appear by video conference, and no guardian was appointed for him. Tenant also raised meritorious defenses to landlord's claim. Tenant claimed that he didn't sublet the apartment but had a roommate who moved out before landlord started the eviction case. Another occupant moved in without tenant's permission or knowledge and wasn't a subtenant because she was a family member of tenant's. Landlord also argued that tenant waited too long to ask the court to vacate the default and that it had already spent $200,000 renovating the apartment. But the potential prejudice to tenant of losing his long-term home outweighed the prejudice to landlord. The case was reopened, but tenant's request to be restored to possession was held open pending the outcome of the trial on landlord's claim.

46 Downing Street LLC v. Thompson: 2013 NY Slip Op 23340, 2013 WL 5525982 (Civ. Ct. NY; 10/7/13; Kraus, J)