The following papers numbered 1 to 5 were read and considered on the defendant’s Order to Show Cause Papers Numbered Notice of Motion and Affidavits Annexed Order to Show Cause and Affidavits Annexed 1-3 Affirmation/Affidavits in Opposition 4 Summons and Complaint Replying Affidavits 5 Filed Papers Exhibits Memorandum of Law DECISION AND ORDER Plaintiff commenced the above entitled matter seeking to recover outstanding rent through April 30, 2014. Plaintiff alleged that Defendants failed to give proper notice of vacatur, and Plaintiff did not obtain possession until on or after April 30, 2014. Defendant Alexis Oritz appeared and filed a written answer denying responsibility. Movant, Defendant Claribel Torres never appeared or answered. The matter was scheduled for a pretrial conference. After the Defendants failed to appear, a judgment in the amount of $10,156.1 was entered on May 5, 2021. Defendant Claribel Torrres now moves to vacate the default judgment, alleging that Defendant vacated the apartment in December 2013. She alleged she is a single mother, living in municipal housing with her two children and that her only source of income is unemployment benefits. She stated she just received correspondence regarding the above matter as she was living with her sister and caring for her sister’s children. She requested the Court dismiss the action as it applies to her. Ms. Torres annexed a notarized affidavit from Alexis Ortiz which confirms that Ms. Torres vacated the apartment in December 2013 and assumes full and sole responsibility for the debt. Plaintiff opposed the application. A movant seeking to vacate a default judgment must demonstrate that there was a reasonable excuse for the default and a meritorious defense to the cause of action. See. CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141 (1986); Codoner v. Bobby’s Bus Co, Inc., 85 A.D.3d 843 (2011). “The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court…” Green Apple Mgt. Corp. v. Aronis, 55 A.D.3d 669, 669 (2008). Plaintiff argued Defendant was served with the Summons and Complaint and CPLR 3215 notices at the same address that she currently resides. Plaintiff argued that Defendant’s mere denial of service is insufficient to establish a credible explanation for her failure to appear. The Court disagrees. Defendant alleged that at the time of the alleged service she was living in her sister’s home, caring for her nephew while her sister worked in the hospital. While the Court may have, in the past, declined to accept this allegation as credible, the Court notes the correspondence sent by the Plaintiff was dated April 2020 and the summons and complaint were allegedly served in June 2020. This was on the heels of the state of emergency which was declared on March 7, 2020 following the COVID-19 global pandemic. As the numbers in the state have dropped, it becomes more challenging to remember those first days. In the spring and summer of 2020, New York was the epicenter of the virus, our health care system was buckling, and the state imposed a month-long lockdown followed by a phased in reopening plan. Governor Cuomo issued several Executive Orders and legislators rushed to address the unprecedented circumstances posed by the pandemic. All the while, Defendant’s sister was allegedly one of our nation’s health care hero’s, working in a hospital while Defendant cared for her son. Under these circumstances, the Court finds Defendant’s assertions credible and that same constitute a reasonable explanation for her failure to appear. Defendant has further demonstrated a potentially meritorious defense to the action. Defendant alleged that she was completely unaware of the amount allegedly due. She asserted that she vacated the apartment prior to the commencement of the underlying landlord tenant action and paid her portion of the rent to Alexis Ortiz. She further indicated that her employment was impacted by the COVID-19 pandemic. She was a caregiver for the elderly. She alleged that as her agency does not have work for her at the present time, her only source of income is unemployment. Co-Defendant Alexis Ortiz submitted a notarized statement as well, confirming that Ms. Torres vacated the apartment and requesting sole responsibility for the debt. In that Plaintiff alleged any prejudice if the movant’s default were to be vacated, and considering the strong public policy of resolving cases on their merits, (see, Fuentes v. Virgil, 88 AD3d 643, 643 [2011]; Dimitriadis v. Visiting Nurse Serv. of NY, 84 AD3d 1150 [2011]), the defendant Claribel Torres’ motion is granted to the extent that the default is vacated, and all restraints on the defendant’s accounts are lifted forthwith. The above entitled matter is restored to the court’s calendar for August 16, 2021 at 10:00 A.M. in Part IV. Appearances are required. Dated and Entered: July 16, 2021
