In H. v. S., the Appellate Term, Second Department, reviewed an appeal by NS, who was contesting an order from the Richmond County Civil Court which denied her motion to vacate a default final judgment and to stay the execution of a warrant of eviction.
The problem began when NS failed to appear for her adjourned trial date in a summary holdover proceeding, leading to a default judgment in the landlord’s favor. While the tenant later asserted that the outcome should be vacated due to a lack of personal jurisdiction, that argument was found to have been waived because she failed to raise it in her initial answer, as required by the governing procedural rules.
The tenant also sought to vacate the determination on the grounds of excusable default, but to succeed, she needed to demonstrate both a reasonable excuse for her failure to appear and a meritorious defense. While she claimed that she missed the trial due to scheduled surgery she neglected to provide any medical documentation to support that claim. As a result, the court found that she did not demonstrate a reasonable excuse for her default.
Since NS did not establish a reasonable excuse, the court didn’t need to consider whether she had a meritorious defense. And, on appeal, the Appellate Term, Second Department, agreed that the lower court had appropriately exercised its discretion in denying the tenant’s motion to vacate the default judgment. Additionally, the portion of the appeal seeking to stay the execution of the warrant of eviction was dismissed as moot because the eviction had already occurred.
Can you find default with that?
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DECISION