In Eklecco Newco, LLC v. Schlomit, Inc. , the landlord served a "relocation notice" on the tenant in accordance with the terms of the parties' commercial lease. After the tenant refused to comply with the notice, the landlord terminated the tenancy and commenced a holdover proceeding in a Rockland County Justice Court.
When the case was first scheduled to be heard, the tenant's attorney did not file an answer. And, although the tenant was given additional time by the court -- an answer was due by May 24, 2005 and a trial scheduled for June 9, 2005 -- tenant's counsel opted to make a motion that wasn't going to be on the court's calendar until June 20, 2005, weeks after the original court-selected dates.
Although tenant's papers presented a series of objections to the holdover case, since landlord adequately rebutted these contentions in its opposition, the Justice Court was of the opinion that a trial was not warranted and granted relief in the landlord's favor. On appeal, the Appellate Term, 9th and 10th Judicial Districts, affirmed noting, in part, as follows:
[S]ince the record fails to disclose that tenant demonstrated the existence of any genuine issues of fact, and in view of tenant's failure to timely answer, it was not an improvident exercise of discretion for the court to award judgment to landlord without allowing tenant a further opportunity to interpose an answer ....
This case reinforces that leave to file an answer (particularly after pre-answer motion practice) ain't always granted.
It's a risky business , folks!
For a copy of the Appellate Term's decision, please use this link: Eklecco Newco, LLC v. Schlomit