Landlord Can Vacate Default

Landlord sued to evict tenant for nonpayment of rent. Tenant claimed landlord had collected a rent overcharge. Landlord's attorney didn't appear on one court date due to illness. The court refused to give landlord an adjournment, and ruled for tenant based on landlord's default. The trial court awarded tenant a rent overcharge with triple damages and interest totalling over $40,000. Landlord appealed. The appeals court ruled for landlord. Before landlord's attorney missed the court appearance, he'd appeared in court 19 times on this case over a three-month period. This indicated there was no willful default or abandonment of the action. Also, the case should be decided on the merits. The case was reopened on the condition that landlord pay tenant $1,500 to cover tenant's costs for entering and seeking execution of the judgment that was now vacated.

Kahan v. Bergman: NYLJ, p. 21, col. 5 (5/10/94) (App. T. 1 Dept.; Parness, JP, McCooe, Glen, JJ)