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Incarceration is Excusable Default in New York Housing Court Proceeding

Incarceration is Excusable Default in New York Housing Court Proceeding

by Mark Wilson

On October 7, 2013, the New York City Housing Court held that a tenant who could not attend court proceedings due to incarceration was entitled to relief from a default judgment.

Otto Thompson, 57, who is disabled, had lived in his rent-controlled apartment in New York City since 1963. He paid the $450.25 monthly rent from his SSI benefits.

In 2006 or 2007, Jose Salmon became Thompson’s roommate and remained in the apartment after Thompson was arrested and incarcerated at Rikers Island pending criminal charges in October 2008. The landlord then initiated eviction proceedings, alleging that Thompson had illegally sub-let his apartment to Salmon.

Thompson was ultimately convicted and sentenced to five years in prison. After several continuances, the Inquest Court signed a judgment of eviction on February 8, 2010, and a warrant of eviction was executed on April 30, 2010.

Following his release, Thompson moved for relief from default on April 13, 2013. Finding that “incarceration can be the basis for excusable default,” citing Benado v. Antonio, 10 A.D.2d 40, 197 N.Y.S. 2d 1 (N.Y. App. Div. 1st Dep’t 1960), the Civil Court of the City of New York granted the motion.

The court found that Thompson was denied due process and had presented an excusable default for his failure to appear. He “was incarcerated at the time of the inquest, but made many and varied attempts to respond to the proceeding, which establish that his failure to appear was not willful and that his incarceration constituted a reasonable excuse to vacate the default.”

Further, a Guardian Ad Litem (GAL) should have been appointed for Thompson because he could not adequately defend his rights under the circumstances, the court concluded, stating: “Failure to appoint a GAL will otherwise deprive the litigant of basic due process rights and an opportunity to be heard.” See: 46 Downing Street LLC v. Thompson, Civil Court, City of New York, New York County, Case No. L & T81450/2009.


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Related legal case

46 Downing Street LLC v. Thompson