Opinion
23835
September 25, 2003.
For Plaintiffs, Donald Chase Esq., Morrison Cohen Singer Weinstein, LLP, 750 Lexington Avenue, New York, N.Y. 10022.
For Defendants, Patrick J. Bliss Esq., 399 Knollwood Road, Suite 213, White Plains, N.Y. 10603.
DECISION AND JUDGMENT
Plaintiffs move to modify the court's decision and judgment dated March 28, 2003. The order awarded defendant Ned Marshall, Inc., the undisputed purchase price and value of an Aubusson rug, $9,450.00; defendant's commission of 35% of the purchase price for procuring the rug, $3,307.50; and a charge of $117.00 for shipping the rug: a total of $12,874.50. Decision and Judgment at 30-31 (Mar. 28, 2003). Plaintiffs now claim defendant Ned Marshall's testimony that the rug was delivered to plaintiffs, on which the court based its conclusion that defendant corporation was entitled to payment, was perjured, requiring vacatur of the award. CPLR § 5015(a)(3).
I. PRIOR PROCEEDINGS
In their answer, defendants counterclaimed that plaintiffs had "failed . . . to make payment in full for . . . items purchased on Plaintiff's behalf," Verified Answer and Counterclaims ¶ 14; "refused to pay for . . . furnishings ordered at Plaintiffs' specific request and purchased by defendant," id. ¶ 25; and "been unjustly enriched by accepting the benefits of defendant NED MARSHALL, INC.'s work, labor, services and goods without compensating Defendant." Id. ¶ 27. These allegations encompass a claim for the balance owed on merchandise delivered by defendants to plaintiffs and retained by them. At trial, defendants specified that these claims included the value of a Chinese Aubusson flat woven rug from Stark Carpet Corporation.
Plaintiffs protest that defendants never articulated a claim for the value of the rug in response to disclosure requests, but fail to point to any requests that called for such disclosure. Plaintiffs' request for production of documents dated April 26, 2000, simply sought documents related to "services, work, labor and goods allegedly provided by defendants to plaintiffs," Ex. 3 ¶ 2; "demands for payment made by defendants to plaintiffs," id. ¶ 3; "services, work, labor and goods allegedly provided by any person to defendants or plaintiffs concerning the plaintiffs and their orders for goods and services," id. ¶ 6; "communications between defendants and other persons concerning the goods and services allegedly ordered by plaintiffs," id. ¶ 7; "communications with plaintiffs," id. ¶ 8; and "allegations set forth in the . . . Counterclaims." Id. ¶ 9. If defendants' responses were deficient, plaintiffs remedy was, if the deficiency was revealed before trial, to move to compel a complete response or, if the deficiency was not apparent until trial, to move then to preclude evidence of the claim for the rug's value. In fact at trial, a document relating to defendants' claim for the rug's value was admitted in evidence. Ex. 40. If defendants failed to produce this document in response to plaintiffs' document request, plaintiffs could have objected to it, but they did not; in fact, they introduced it.
Transcript of Proceedings at 76-78 (Mar. 6, 2002)
At trial, defendant Marshall testified that he selected the rug from Stark Carpet, which delivered the rug to plaintiffs' home January 31, 2001, on a trial basis, for plaintiffs' approval, as agreed by the parties. Tr. at 17-18 (Feb. 21, 2002) and at 79 (Mar. 6, 2002); Decision and Judgment at 30. Plaintiffs neither returned the rug nor made any payment for the rug to defendants or to Stark Carpet, thus assuming control and exercising ownership rights, to the exclusion of defendants' control of ownership, over property that defendant Ned Marshall, Inc., had procured and was obligated to pay for. Tr. at 17-18 (Feb. 21, 2002) and at 75-76, 82-83 (Mar. 6, 2002); Decision and Judgment at 30; Uniform Commercial Code (UCC) § 2-606(1)(b) and (c); Vigilant Ins. Co. of Am. v. Housing Auth. of City of El Paso, Tex., 87 N.Y.2d 36, 44 (1995);Robert Hunt Co. v. S R Coachworks, 215 A.D.2d 361, 362 (2d Dep't 1995). Therefore the court held plaintiffs liable to defendant Ned Marshall, Inc., for the price of the rug, defendant's commission, and the shipping charge: $12,874.50 in total. Decision and Judgment at 30-31.
Plaintiffs protest further that Marshall's testimony concerning the rug's delivery was hearsay, based on his conversations with a Stark Carpet representative, and uncorroborated by documentary evidence or otherwise. Yet at trial, plaintiffs had ample opportunity to object to this testimony, to seek to discredit it, and to offer their own evidence on this issue, but neglected to do so. That opportunity does not extend after the trial has concluded.
II. PLAINTIFFS' CURRENT MOTION
Nevertheless, plaintiffs now present the evidence they neglected to offer at trial: that Stark Carpet never delivered the Aubusson rug to plaintiffs. Plaintiffs provide no explanation, however, why they did not present this evidence at trial. They do not establish that the evidence was unavailable at the time of the trial or within the 15 days permitted for post-trial motions under CPLR § 4404 and could not have been located with due diligence before the trial. CPLR § 5015(a)(2); Weinstock v. Handler, 251 A.D.2d 184 (1st Dep't 1998); Olwine, Connelly, Chase, O'Donnell Weyer v. Valson, a/Inc., 226 A.D.2d 102, 103 (1st Dep't 1996). Since this new evidence consists of the testimony of plaintiff Robert Cohen, who was present throughout the trial, and Stark Carpet representative Michael Blechner, plaintiffs surely would have known about or had the opportunity to discover their version of the facts and been able to present this evidence as rebuttal to Marshall's testimony. Weinstock v. Handler, 251 A.D.2d 184. See Olwine, Connelly, Chase, O'Donnell Weyer v. Valson, Inc., 226 A.D.2d at 103; Gonzalez v. Chalpin, 233 A.D.2d 367, 368 (2d Dep't 1996).
Plaintiffs urge that the testimony of Cohen and Blechner is not just newly discovered evidence that would change the result and therefore be required to have been unavailable previously. CPLR § 5015(a)(2). Plaintiffs urge that the testimony of Cohen and Blechner establishes that Marshall's testimony was perjured, thus permitting vacatur under CPLR § 5015(a)(3), for "fraud, misrepresentation, or other misconduct of an adverse party," without a requirement that the evidence of perjury have been unavailable previously.
Plaintiffs do not claim a fraud that deprived plaintiffs of a full trial. See Burgos v. Burgos, 304 A.D.2d 475 (1st Dep't 2003). Plaintiffs had a full opportunity to object to Marshall's testimony, undermine his credibility through cross-examination, and squarely contradict his testimony through the testimony of plaintiff Nanette Koryn, who testified extensively, Robert Cohen, and Stark Carpet personnel.
Instead, plaintiffs claim conduct that injected fraud into the trial. To claim that any evidence which was not introduced at trial, but which casts doubt on or even squarely contradicts evidence which was introduced and produced the result sought to be vacated, establishes "fraud" under CPLR § 5015(a)(3) would obliterate any distinction between § 5015(a)(3) and § 5015(a)(2) and the requirement under § 5015(a)(2) that the evidence be newly discovered. Any evidence that is presented in support of vacatur under § 5015(a)(2) and hence would change the result at trial will inevitably be contradictory to the evidence that supported the original result. Evidence supporting vacatur under § 5015(a)(2), however, unlike the evidence plaintiffs present, must have been unavailable previously.
Plaintiffs may not escape the strictures of CPLR § 5015(a)(2) by selecting the alternative of § 5015(a)(3). Not all evidence that would support vacatur under § 5015(a), if newly discovered, including plaintiffs' evidence, also supports vacatur under CPLR § 5015(a)(3). Vacatur under § 5015(a)(3) requires conduct intended to defraud. Burgos v. Burgos, 304 A.D.2d 475. Simply revealing evidence that was available but not introduced at the time of trial, but that casts doubt on the credibility of evidence introduced, does not establish the fraudulent conduct contemplated by CPLR § 5015(a)(3).
CPLR § 5015(a)(3), moreover, similarly to § 5015(a)(2), requires that the fraud not have been discoverable before the judgment. H Y Realty Co. v. Baron, 193 A.D.2d 429, 430 (1st Dep't 1993). If plaintiffs had prior actual or constructive notice of defendants' misleading conduct, plaintiffs may not succeed under § 5015(a)(3). Richard B. v. Sandra B.B., 209 A.D.2d 139, 144 (1st Dep't 1995); H Y Realty Co. v. Baron, 193 A.D.2d at 430; Greenwich Sav. Bank v. JAJ Carpet Mart, 126 A.D.2d 451, 453 (1st Dep't 1987); A. Resnick Textile Co., Inc. v. Ramapo Trading Corp., 2003 WL 1748363 (App. Term 1st Dep't Mar. 13, 2003). Marshall testified about the Aubusson rug on the fourth and fifth days of a ten day trial that spanned over many weeks. On the fifth day, he identified Michael Blechner as the person at Stark Carpet who provided Marshall with his information about the delivery of the rug to plaintiffs and their failure to return it. Tr. at 82 (Mar. 6, 2003). Although plaintiffs had ample opportunity before the trial concluded to rebut Marshall's testimony through plaintiffs' subsequent testimony and by contacting Blechner about his version of the facts, plaintiffs elected to forego that opportunity and waited until after the judgment to present their rebuttal. Richard B. v. Sandra B.B., 209 A.D.2d at 144; H Y Realty Co. v. Baron, 193 A.D.2d at 430;Greenwich Sav. Bank v. JAJ Carpet Mart, 126 A.D.2d at 453.
The fact that defendants may have failed to call plaintiffs' attention to defendants' claim concerning the rug until the trial is of no consequence. Jackson v. Kessner, 206 A.D.2d 123, 130 n. 1 (1st Dep't 1994). Marshall's testimony provided plaintiffs "with more than sufficient notice" of defendants' claim, particularly in view of the length of the trial, giving plaintiffs extensive time to prepare rebuttal to Marshall, the first witness. Id. at 131.
Finally, the testimony of Cohen and Blechner does not unequivocally establish that Marshall's testimony was perjured. Plaintiffs' belated evidence, untested by potential objections, cross-examination, and rebuttal evidence, is as subject to attack as defendants' evidence. Having presented it at trial, defendants subjected their evidence to potential objections, cross-examination, and rebuttal. Plaintiffs, having failed to present their evidence at trial, may not escape such attack and then expect their version of the facts to be accepted as the prevailing view merely because it contradicts defendants' version. Such contradictions are to be resolved at trial. Plaintiffs missed that opportunity. Richard B. v. Sandra B.B., 209 A.D.2d at 144; H Y Realty Co. v. Baron, 193 A.D.2d at 430; Greenwich Sav. Bank v. JAJ Carpet Mart, 126 A.D.2d at 453.
III. CONCLUSION
For all the above reasons, the court denies plaintiffs' motion to modify the court's decision and order dated March 28, 2003, to vacate the $12,874.50 award to defendant Ned Marshall, Inc., for the Aubusson rug.