136-76 39th Ave., LLC v. Ai Ping Wu
2017 NYSlipOp 50363(U)
| N.Y. App. Term. | Mar 29, 2017Background
- Landlord (136-76 39th Avenue, LLC) brought a commercial nonpayment summary proceeding after tenant (Ai Ping Wu) allegedly failed to pay rent following a three‑month rent waiver tied to landlord-performed renovations.
- The petition, verified by landlord’s attorney (hearsay), alleged landlord gave written notice that renovations were complete and demanded rent orally and by written demand.
- Tenant did not answer or appear; Civil Court entered a default final judgment awarding possession based solely on the attorney’s affirmation.
- Tenant moved to vacate the default final judgment and be restored to possession, claiming ongoing construction excused nonpayment and contesting service of the written rent demand.
- The Civil Court denied the motion for failure to show a reasonable excuse for the default or a potentially meritorious defense; tenant appealed.
- The Appellate Term agreed the default judgment could not rest on counsel’s hearsay affirmation and vacated the judgment, but affirmed denial of relief to open the default because tenant failed to show excuse or meritorious defense.
Issues
| Issue | Plaintiff's Argument (Landlord) | Defendant's Argument (Tenant) | Held |
|---|---|---|---|
| Validity of default judgment based on attorney’s hearsay affirmation | Judgment supported by attorney’s sworn affirmation in support of petition | Attorney’s hearsay affirmation insufficient to support default final judgment | Default judgment vacated — affidavit or petition sworn on personal knowledge required |
| Whether tenant showed reasonable excuse to open default under CPLR 5015(a)(1) | No excuse offered; tenant failed to appear | Ongoing/unfinished construction excused nonpayment and justified default | No reasonable excuse shown; motion to open default denied |
| Whether tenant presented potentially meritorious defense to nonpayment claim | Lease requires rent despite other building construction; rent abatement limited to three months after landlord notice | Construction ongoing prevented tenant from using premises or completing required work, excusing rent | No potentially meritorious defense: lease expressly required rent and tenant did not dispute landlord completed renovations or inability to proceed |
| Sufficiency of rent demand service | Petition alleged an oral rent demand (and written demand) | Service of written rent demand was defective | Argument raised first on appeal and waived; in any event an oral demand sufficed under RPAPL 711(2) |
Key Cases Cited
- Matter of Brusco v. Braun, 199 A.D.2d 27 (App. Div. 1993) (attorney’s hearsay affirmation insufficient to substitute for sworn affidavit on personal knowledge)
- Matter of Brusco v. Braun, 84 N.Y.2d 674 (Court of Appeals 1994) (affirming principles regarding affidavits and jurisdictional/formal defects)
- Joe v. Upper Room Ministries, Inc., 88 A.D.3d 963 (App. Div. 2011) (appellate courts decline to consider issues raised for the first time on appeal)