Tenant Can Vacate Default

Landlord sued to evict tenant for nonpayment of rent. Tenant didn't appear in court and landlord was granted a default judgment against her. Tenant later asked the court to vacate the default. The trial court ruled for tenant, agreeing to reopen the case. Landlord appealed. The appeals court ruled against landlord. Tenant showed both an excuse for her default and a defense of merit. Tenant claimed that landlord didn't serve a written five-day default notice, as required by tenant's lease. The fact that tenant had already moved out and possibly didn't want to move back in didn't bar the default judgment from being vacated. It could still be used against tenant to collect money from her. Landlord could proceed with a trial against tenant.

Nicole Holding Co. v. Sargent: NYLJ, p. 33, col. 2 (3/16/95) (App. T. 2 Dept.; Aronin, JP, Scholnick, Patterson, JJ)