Opinion
03-07-2017
Aron GRINSHPUN, et al., Plaintiffs–Respondents, v. Gennady (also known as Eugene) BOROKHOVICH, Defendant–Appellant, Vitaly Zaretsky, Defendant.
Krol & O'Connor, New York (Igor Krol of counsel), for appellant. Michael Konopka & Associates, P.C., New York (Michael Konopka of counsel), for respondents.
Krol & O'Connor, New York (Igor Krol of counsel), for appellant.
Michael Konopka & Associates, P.C., New York (Michael Konopka of counsel), for respondents.
ACOSTA, J.P., RICHTER, MANZANET–DANIELS, GISCHE, WEBBER, JJ.
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered November 9, 2015, which denied defendant Gennady Borokhovich's motion to vacate the default judgment entered November 11, 2011, unanimously affirmed, with costs.
Defendant failed to show, in support of vacatur pursuant to CPLR 5015(a)(2), that the agreements in which plaintiffs allegedly released him from liability "could not have been previously discovered by the exercise of due diligence" (Prote Contr. Co. v. Board of Educ. of City of N.Y., 230 A.D.2d 32, 39, 657 N.Y.S.2d 158 [1st Dept.1997] ). Defendant has been in possession of the agreements since the inception of the litigation. While he claims that he was unable to access the agreements due to hurricane damage to his home office and marital difficulties, lack of access did not prevent him from alerting the court to their existence. Defendant claims that he did not know of the releases. However, he admits knowing that plaintiffs "promised to release him" and that, in consideration for one of the agreements, he was to be "left in peace." This knowledge should have prompted further inquiry. At the very least, defendant should have brought the November 2006 release to the court's attention when it was produced to his attorneys, one year before the instant motion was made.
Defendant failed to show, in support of vacatur pursuant to CPLR 5015(a)(3), the existence of fraud (see Thakur v. Thakur, 49 A.D.3d 861, 855 N.Y.S.2d 183 [2d Dept.2008] ; see also Sanchez v. Avuben Realty LLC, 78 A.D.3d 589, 590, 912 N.Y.S.2d 185 [1st Dept.2010] ). We note, moreover, that his motion was not brought within a reasonable time (see Mark v. Lenfest, 80 A.D.3d 426, 426, 914 N.Y.S.2d 141 [1st Dept.2011] ). Defendant's arguments with respect to the necessity of an inquest and the merits of plaintiffs' claims are foreclosed by our prior order upholding the default judgment (see Grinshpun v. Borokhovich, 100 A.D.3d 551, 954 N.Y.S.2d 520 [1st Dept.2012], lv. denied 21 N.Y.3d 857, 2013 WL 2436328 [2013] ).