Tenant Can Vacate Default

Landlord sued to evict tenant for nonpayment of rent. 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 eviction warrant. The court ruled against tenant. Tenant appealed and won. Landlord's court papers didn't sufficiently show that a proper rent demand was made. And the affidavit of service of the court papers stated that only one attempt at personal delivery was made. At least two attempts are required. Tenant also showed that DSS made a prior payment that might have covered a portion of the rent landlord claimed was owed. So tenant showed he had an excuse for his default and a possible defense to landlord's claim. The default was vacated.

Martine Assocs. LLC v. Minck: NYLJ, 10/7/04, p. 32, col. 2 (App. T. 2 Dept.; McCabe PJ, Rudolph, Angiolillo, JJ)