Opinion
519823.
12-17-2015
Shirley HE, Appellant, v. SIEMENS ENERGY, INC., et al., Respondents.
Shirley He, Clifton Park, appellant pro se. Littleton Joyce Ughetta Park & Kelly, LLP, Purchase (Bryon L. Friedman of counsel), for Siemens Energy, Inc. and others, respondents. The Dalton Law Firm, LLC, Saratoga Springs (Alisa M. Dalton of counsel), for Ricardo R. Austria and another, respondents.
Shirley He, Clifton Park, appellant pro se.
Littleton Joyce Ughetta Park & Kelly, LLP, Purchase (Bryon L. Friedman of counsel), for Siemens Energy, Inc. and others, respondents.
The Dalton Law Firm, LLC, Saratoga Springs (Alisa M. Dalton of counsel), for Ricardo R. Austria and another, respondents.
Opinion
DEVINE, J.
Appeal from an order of the Supreme Court (Clark, J.), entered December 20, 2013 in Schenectady County, which, among other things, denied plaintiff's motion to vacate a prior order of the court.
Plaintiff has regularly appeared before this Court on matters connected, be it directly or indirectly, to her 2005 divorce (Xiaoling Shirley He v. Xiaokang Xu, 130 A.D.3d 1386, 16 N.Y.S.3d 90 2015, lv. denied 26 N.Y.3d 904, 2015 WL 5149899 2015; Xiaoling Shirley He v. Xiaokang Xu, 126 A.D.3d 1052, 4 N.Y.S.3d 723 2015; He v. Realty USA, 121 A.D.3d 1336, 996 N.Y.S.2d 734 2014, lv. dismissed and denied 25 N.Y.3d 1018, 10 N.Y.S.3d 510, 32 N.E.3d 946 2015; Xiaokang Xu v. Xiaoling Shirley He, 77 A.D.3d 1083, 909 N.Y.S.2d 574 2010; Xiaokang Xu v. Xiaoling Shirley He, 24 A.D.3d 862, 804 N.Y.S.2d 867 2005, lv. denied 6 N.Y.3d 710, 813 N.Y.S.2d 46, 846 N.E.2d 477 2006 ). Plaintiff commenced this action in 2012 against the former employer of her ex-husband, defendant Siemens Energy, Inc., as well as several of his former coworkers. The gravamen of the complaint is that defendants interfered in various ways with plaintiff's marriage, harassed her and either perjured themselves at her divorce trial or facilitated such perjury.
Siemens and defendants Brian Gemmell, Clyde Custer, James W. Feltes and Yachi Lin (hereinafter collectively referred to as the Siemens defendants) filed a pre-answer motion to dismiss the complaint and argued, among other things, that it was time-barred. Defendants Ricardo R. Austria and Ramon Tapia filed a separate pre-answer motion to dismiss, alleging that personal jurisdiction had not been obtained over them and that the complaint failed to state a cause of action. At plaintiff's request, Supreme Court (Drago, J.) extended the time in which she could serve responsive papers to May 12, 2012, but made clear that “[n]o further adjournments will be accepted.” Supreme Court did not respond to subsequent requests by plaintiff for an extension and, in August 2012, granted both motions upon the basis that all of the claims contained in the complaint were time-barred. Plaintiff's appeal from the August 2012 order was dismissed (2012 N.Y. Slip Op. 92933[U], 2012 WL 6062345 ), prompting her to move to vacate the order in July 2013. Supreme Court (Clark, J.) denied the motion, and plaintiff now appeals from this order.
We affirm. Despite having been granted an extension of time in which to serve responsive papers and being advised that no further extensions would be granted, plaintiff submitted nothing aside from requests for further adjournments. Contrary to the argument of the Siemens defendants, Supreme Court properly treated the August 2012 order as one entered upon default under these circumstances (see CPLR 2214[c]; Hartwich v. Young, 149 A.D.2d 762, 765, 539 N.Y.S.2d 562 1989, lv. denied 75 N.Y.2d 701, 551 N.Y.S.2d 905, 551 N.E.2d 106 1989 ). Nonetheless, in order “to be relieved of a judgment [or order] on the ground of ‘excusable default’ ... [a party] must establish that there was a reasonable excuse for the default and a meritorious claim or defense” (Pekarek v. Votaw, 216 A.D.2d 829, 830, 628 N.Y.S.2d 859 1995, quoting CPLR 5015[a]1; see Doane v. Kiwanis Club of Rotterdam, N.Y., Inc., 128 A.D.3d 1309, 1310, 9 N.Y.S.3d 750 2015 ). Assuming, without deciding, that plaintiff established a reasonable excuse for her default ( but see Jaffery v. MacMillan & Webb Enters., Inc., 27 A.D.3d 422, 422–423, 812 N.Y.S.2d 588 2006 ), she did not go on to establish the existence of a meritorious claim.
Plaintiff here sought to recover for various intentional torts allegedly committed by defendants between 2002 and 2004. This action was commenced in 2012 and, because most of the causes of action asserted in the complaint are subject to a statute of limitations of one year (see CPLR 215 3 ) or three years (see CPLR 2144, 5 ), they are time-barred. Plaintiff makes no effort to chart a potential path to overcoming the statute of limitations problem with regard to those causes of action; she does, however, argue that certain fraud claims interposed in the complaint remain viable. The complaint specifically alleged that certain defendants committed perjury or suborned perjury in the divorce action, and plaintiff contends that those claims are not time-barred because she only recently became aware of defendants' lies (see CPLR 2138 ). It has been long established “that there can be no civil action for perjury or subornation of perjury,” however, and whatever redress is available to plaintiff does not include the present action (Verplanck v. Van Buren, 76 N.Y. 247, 261 1879; see Specialized Indus. Servs. Corp. v. Carter, 68 A.D.3d 750, 751–752, 890 N.Y.S.2d 90 2009 ). Thus, because plaintiff failed to come forward with proof of a meritorious claim, Supreme Court did not abuse its discretion in denying her motion to vacate the order entered upon her default (see F & K Supply, Inc. v. Shean, 56 A.D.3d 1076, 1078, 869 N.Y.S.2d 257 2008 ).
ORDERED that the order is affirmed, without costs.
McCARTHY, J.P., EGAN JR. and ROSE, JJ., concur.