Landlord's Witnesses Should Have Been Allowed to Testify at Hearing

Landlord sued to evict tenant for nonpayment of rent. The court ruled for landlord based on tenant's failure to appear in court. Tenant later asked the court to vacate the default judgment and restore the case to the court calendar. Landlord didn't oppose tenant's request to restore the case. Landlord, instead, appeared in court with witnesses on the date that tenant's request to restore the case was being heard, since landlord expected that there would be a hearing on tenant's claim for a rent abatement. The court ruled for tenant and wouldn't allow landlord to present witnesses, because landlord hadn't objected to restoring the case to the court calendar. Landlord appealed and won. The fact that landlord didn't object to tenant's request to restore the case didn't mean that landlord didn't object to tenant's rent abatement claim. The lower court should have allowed landlord's witnesses to testify. The case was sent back for a new hearing.

4117 15th Ave. Realty Corp. v. Hornedo: NYLJ, 7/3/00, p. 26, col. 3 (App. Div.2 Dept.; Aronin, JP, Scholnick, Patterson, JJ)