Kanti-Savita Realty Corp. v. Parish , 610 NYS2d 123 ( 1993 )

OPINION OF THE COURT

Memorandum.

Order unanimously reversed without costs, judgment vacated and matter remanded to the court below for further proceedings.

Appeal from judgment dismissed as moot.

In this nonpayment proceeding, the tenant served his answer pro se and raised various affirmative defenses, including that of breach of warranty of habitability. The court denied tenant’s request for an adjournment to obtain counsel and then proceeded to enter judgment in favor of the petitioner without requiring the petitioner to establish its prima facie case and without permitting the tenant to establish his defense of breach of warranty of habitability. The court then denied tenant’s motion to vacate said judgment.

This court has noted in the past that it disapproves of the practice of entering judgment without hearing sworn testimony or having a stipulation of facts (see, Cooper Realty Co. v Spuhler, NYLJ, Dec. 3, 1991, at 31, col 2 [App Term, 2d & 11th Jud Dists]; Cindy Realty Co. v Fellows, NYLJ, Sept. 1, 1987, at 14, col 4 [App Term, 2d & 11th Jud Dists]). Therefore, tenant’s motion to vacate the judgment should have been granted and the issues should proceed to a plenary trial in the court below.

Kassoff, P. J., Chetta and Patterson, JJ., concur.