R&E Secures Appellate Division Win For Property Owner In Dispute Over Rent Payments Following A Fire
Appellate Division, Second Department, Decided March 3, 2021
Featuring Jason R. Davidson and Alexander Lycoyannis
Rosenberg & Estis prevailed on appeal at the Appellate Division, Second Department, successfully opposing a tenant’s effort to overturn a money judgment the firm had obtained for its client, a New York City property owner, in New York State Supreme Court.
In 2015, the tenant sued R&E’s client, a commercial property owner, following a fire that had occurred at the Brooklyn property. Thereafter, the owner moved for an order compelling the tenant to pay rent during the pendency of the action. The Supreme Court held that the tenant was entitled to a rent abatement until the owner substantially completed repairs resulting from the fire, and that the rent reverted to the full amount due upon such substantial completion.
The tenant, in violation of the court’s order, failed to pay any of the abated rent or, after substantial completion of repairs, the full rent due. Accordingly, the owner moved for a money judgment for these unpaid sums. The tenant’s attorney failed to file opposition papers, but appeared at oral argument of the motion, and the court granted the owner’s motion for a six-figure money judgment.
One year after the judgment was issued, the tenant moved to vacate the judgment based on its supposed “default” in submitting written opposition to the owner’s motion. The Supreme Court rejected this argument and denied the motion, letting the money judgment stand.
The tenant appealed and the Appellate Division, Second Department, affirmed the Supreme Court’s ruling, holding, among other things, that “the plaintiff failed to demonstrate a reasonable excuse for his default in opposing the defendant’s motion” and, further, that “the plaintiff failed to explain why he waited approximately one year after the court granted the defendant’s motion and entered the order and judgment before moving to vacate his default.”