Tenant Can Vacate Default

March 1, 1994

LVT Number: 8644

Landlord sued Westchester tenant after she moved out for breach of lease. Tenant didn't appear in court. The trial court ruled for landlord, awarding him $7,450. Tenant later asked the court to vacate the default judgment against her. Tenant wasn't personally served with landlord's summons. She also claimed that landlord had agreed to let her out of her lease, that the apartment was uninhabitable, and that she was constructively evicted. The trial court ruled for tenant, vacating the default judgment. Landlord appealed, and the appeals court ruled against landlord.

Landlord sued Westchester tenant after she moved out for breach of lease. Tenant didn't appear in court. The trial court ruled for landlord, awarding him $7,450. Tenant later asked the court to vacate the default judgment against her. Tenant wasn't personally served with landlord's summons. She also claimed that landlord had agreed to let her out of her lease, that the apartment was uninhabitable, and that she was constructively evicted. The trial court ruled for tenant, vacating the default judgment. Landlord appealed, and the appeals court ruled against landlord. Landlord had served his summons on tenant by substituted service. Under Civil Practice Law and Rules (CPLR) section 317, tenant could reopen the case to defend herself within one year after learning of the default judgment. And tenant had a meritorious defense.

Massimo v. Oropesa: NYLJ, p. 24, col. 5 (2/1/94) (App. T. 2 Dept.; DiPaolo, PJ, Collins, Ingrassia, JJ)

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