Summary
finding an assignee is "an original party" for the purpose of renewal
Summary of this case from Edrich v. FestingerOpinion
2011-11-10
CHASE LINCOLN FIRST BANK, N.A., Plaintiff–Respondent, v. Kent R. DEHAAN, Defendant–Appellant.
Lance J. Mark, PLLC, Medina (Lance J. Mark of Counsel), for Defendant–Appellant. Manfredi Law Group, PLLC, New York City (John Manfredi of Counsel), for Plaintiff–Respondent.
Lance J. Mark, PLLC, Medina (Lance J. Mark of Counsel), for Defendant–Appellant. Manfredi Law Group, PLLC, New York City (John Manfredi of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.
MEMORANDUM:
By order to show cause, plaintiff's assignee, Premier Capital, Inc. (Premier), sought, inter alia, an order extending and renewing a default judgment entered in 1990 against defendant. Premier correctly concedes that its order to show cause was “procedurally unsound” and that the proper course was to commence an action on the judgment. Supreme Court treated that part of the order to show cause as a motion seeking leave to commence such an action pursuant to CPLR 5014(3) and granted Premier that relief. No prejudice to defendant resulted from the court's action inasmuch as Premier was entitled to commence an action for a renewal judgment without permission pursuant to CPLR 5014(1) ( see generally Schiff Food Prods. Co., Inc. v. M & M Import Export, 84 A.D.3d 1346, 1348, 924 N.Y.S.2d 158; Pangburn v. Klug, 244 A.D.2d 394, 664 N.Y.S.2d 71).
We reject defendant's contention that the court erred in calculating the period in which Premier was entitled to commence an action on the judgment by excluding the period that his bankruptcy proceeding was pending ( see CPLR 204[a]; 11 USC § 362[c][2] ). Contrary to defendant's further contention, Premier, as assignee of the judgment, “is an ‘original party’ ” for the purpose of renewal ( Cadle Co. v. Biberaj, 307 A.D.2d 889, 889, 763 N.Y.S.2d 751). Finally, the court properly denied defendant's cross motion to vacate the judgment pursuant to CPLR 5015(a)(3) inasmuch as the evidence establishes that defendant had knowledge of the alleged fraud before entry of the final judgment ( see Summer v. Summer, 233 A.D.2d 881, 649 N.Y.S.2d 615, lv. dismissed 89 N.Y.2d 981, 656 N.Y.S.2d 739, 678 N.E.2d 1355) and, in any event, the cross motion was not made within a reasonable time ( see Miller v. Lanzisera, 273 A.D.2d 866, 868, 709 N.Y.S.2d 286, appeal dismissed 95 N.Y.2d 887, 715 N.Y.S.2d 378, 738 N.E.2d 782, 96 N.Y.2d 731, 722 N.Y.S.2d 797, 745 N.E.2d 1019).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.