Appeal from an order of the Civil Court of the City of New York, Kings County (Thomas M. Fitzpatrick, J.), dated June 19, 2007. The order denied a motion by Serge Rozenbaum to vacate a default final judgment and dismiss the petition as against him.

Order reversed without costs and motion by Serge Rozenbaum to vacate the default final judgment and dismiss the petition as against him granted.

In this summary proceeding brought pursuant to RPAPL 713 (10), appellant Serge Rozenbaum, the owner of the subject condominium unit, moved to vacate a default final judgment and dismiss the petition as against him. In our view, appellant's motion should have been granted because appellant showed an excuse for his default and conclusively established as a matter of law a meritorious defense to petitioner's proceeding to be restored to possession. With respect to the latter, we note that neither the petitioner nor her mother had a right to remain in the premises subsequent to the expiration of petitioner's mother's lease, as extended through [*2]April 15, 2007. In these circumstances, the proceeding to be restored to possession, commenced on April 25, 2007, should have been dismissed as futile (see Soukouna v 365 Canal Corp., 48 AD3d 359 [2008]; Matter of 110-45 Queens Blvd. Garage v Park Briar Owners, 265 AD2d 415, 416 [1999]). Accordingly, the Civil Court's order is reversed and appellant's motion to vacate the default final judgment and dismiss the petition as against him is granted.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: July 10, 2008