Charleswood Realty Co. v. New York City Conciliation , 78 A.D.2d 797 ( 1980 )

Appeal from default judgment, Supreme Court, New York County, entered September 5, 1979, which granted the petition and annulled the order of respondent, the New York City Conciliation and Appeals Board, determining the initial legal regulated rent for an apartment which became subject to the Rent Stabilization Law on July 1,1974, unanimously dismissed, without costs or disbursements, as nonappealable (CPLR 5701, subd [b], par 1). Order, Supreme Court, New York County, entered June 27,1979, denying respondent’s motion to open its default, unanimously reversed, on the law and on the facts, and in the exercise of discretion, without costs or disbursements, and the motion granted. After receiving two adjournments respondent board applied for additional time to interpose an answer in this CPLR article 78 proceeding. Special Term refused an adjournment and eventually granted petitioner judgment “without opposition”. Before the settlement of judgment, respondent unsuccessfully moved to open its default. The motion should have been granted. The board demonstrated an adequate excuse for the default in answering, and merit to its opposition to the petition. Moreover, petitioner landlord was unable to show any prejudice if the default were opened. On the other hand the tenant, not a party to the proceeding, and not responsible for the delay in answering, would suffer adverse consequences. Concur — Kupferman, J. P., Fein, Sandler, Sullivan and Bloom, JJ.