Opinion
2020–08271 Index No. 19458/06
08-31-2022
CHASE BANK USA, N.A., respondent, v. Rachel LAROCHE, appellant.
Rachel Laroche, Westbury, NY, appellant pro se. Maidenbaum & Associates, PLLC, Merrick, NY (Eric J. Canals of counsel), for respondent.
Rachel Laroche, Westbury, NY, appellant pro se.
Maidenbaum & Associates, PLLC, Merrick, NY (Eric J. Canals of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In an action to recover damages for breach of contract and on an account stated, the defendant appeals from an order of the Supreme Court, Nassau County (Jeffrey S. Brown, J.), entered September 29, 2020. The order denied the defendant's motion, in effect, pursuant to CPLR 5015(a)(2) and (3) to vacate a clerk's judgment entered May 3, 2007, in favor of the plaintiff and against the defendant in the total sum of $21,993.43.
ORDERED that the order is affirmed, with costs.
In November 2006, the plaintiff commenced this action against the defendant to recover damages for breach of contract and on an account stated, alleging that the defendant failed to pay certain sums due on her credit card account. The defendant failed to appear or answer the complaint. On May 3, 2007, a clerk's judgment was entered in favor of the plaintiff and against the defendant in the total sum of $21,993.43.
In July 2020, the defendant moved, in effect, pursuant to CPLR 5015(a)(2) and (3) to vacate the clerk's judgment. In an order entered September 29, 2020, the Supreme Court denied the motion, and the defendant appeals.
"Newly discovered evidence is evidence which was in existence but undiscoverable with due diligence at the time of the original order or judgment" ( Nationstar Mtge., LLC v. Paganini, 191 A.D.3d 790, 793, 142 N.Y.S.3d 548 ; see Abakporo v. Abakporo, 202 A.D.3d 646, 649, 163 N.Y.S.3d 137 ; Branch Banking & Trust Co. v. Jacobson, 194 A.D.3d 685, 686, 143 N.Y.S.3d 596 ). "In order to succeed on a motion pursuant to CPLR 5015(a)(2) to vacate an order or judgment on the ground of newly discovered evidence, the movant must establish that the evidence could not have been discovered earlier through the exercise of due diligence and that the newly discovered evidence would probably have produced a different result" ( Borrie v. County of Suffolk, 197 A.D.3d 1285, 1286, 152 N.Y.S.3d 321 ; see Anghel v. Ruskin Moscou Faltischek, P.C., 190 A.D.3d 903, 905, 141 N.Y.S.3d 95 ; Wall St. Mtge. Bankers, Ltd. v. Rodgers, 148 A.D.3d 1088, 1089, 49 N.Y.S.3d 753 ).
The defendant failed to demonstrate that the purportedly newly discovered evidence could not have been discovered earlier with the exercise of due diligence (see HSBC Bank USA, N.A. v. Walker, 201 A.D.3d 795, 797, 162 N.Y.S.3d 82 ; US Bank N.A. v. Eisler, 188 A.D.3d 1288, 1290, 132 N.Y.S.3d 820 ; Wall St. Mtge. Bankers, Ltd. v. Rodgers, 148 A.D.3d at 1089, 49 N.Y.S.3d 753 ). In any event, the defendant also failed to establish that the purportedly newly discovered evidence would have produced a different result (see Globe Trade Capital, LLC v. Hoey, 199 A.D.3d 775, 776, 154 N.Y.S.3d 258 ; M & T Bank v. Crespo, 181 A.D.3d 667, 668, 117 N.Y.S.3d 870 ; Wall St. Mtge. Bankers, Ltd. v. Rodgers, 148 A.D.3d at 1089, 49 N.Y.S.3d 753 ).
The defendant's contention that the plaintiff obtained the clerk's judgment by making false allegations in the complaint amounts to an allegation of intrinsic fraud (see HSBC Bank USA, N.A. v. Walker, 201 A.D.3d at 797, 162 N.Y.S.3d 82 ; LaSalle Bank N.A. v. Oberstein, 146 A.D.3d 945, 945, 45 N.Y.S.3d 538 ; Deutsche Bank Natl. Trust Co. v. Karlis, 138 A.D.3d 915, 916, 30 N.Y.S.3d 228 ; New Century Mtge. Corp. v. Corriette, 117 A.D.3d 1011, 1012, 986 N.Y.S.2d 560 ). "A defendant seeking to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud must establish a reasonable excuse for the default and a potentially meritorious defense to the action" ( CitiMortgage, Inc. v. Nunez, 198 A.D.3d 865, 866, 152 N.Y.S.3d 830 ; see HSBC Bank USA, N.A. v. Somalingam, 203 A.D.3d 897, 897–898, 161 N.Y.S.3d 792 ; U.S. Bank, N.A. v. Robinson, 168 A.D.3d 1120, 1121, 93 N.Y.S.3d 87 ).
The defendant failed to establish a reasonable excuse for the default (see LaSalle Bank N.A. v. Oberstein, 146 A.D.3d at 945, 45 N.Y.S.3d 538 ; Deutsche Bank Natl. Trust Co. v. Gutierrez, 102 A.D.3d 825, 825, 958 N.Y.S.2d 472 ). Since the defendant failed to establish a reasonable excuse for the default, it is unnecessary to consider whether the defendant presented a potentially meritorious defense to the action (see HSBC Bank USA, N.A. v. Somalingam, 203 A.D.3d at 898, 161 N.Y.S.3d 792 ; HSBC Bank USA, N.A. v. Walker, 201 A.D.3d at 797, 162 N.Y.S.3d 82 ; LaSalle Bank N.A. v. Oberstein, 146 A.D.3d at 946, 45 N.Y.S.3d 538 ; EMC Mtge. Corp. v. Toussaint, 136 A.D.3d 861, 862–863, 25 N.Y.S.3d 312 ).
The defendant's remaining contentions are not properly before this Court.
Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's motion, in effect, pursuant to CPLR 5015(a)(2) and (3) to vacate the clerk's judgment.
DILLON, J.P., ROMAN, MALTESE and DOWLING, JJ., concur.