Summary
In Rubinstein, the First Department held that the defendant's argument that the New Jersey judgment was obtained by "default in appearance" was without merit since the defendant, although he did not appear personally at the hearing, opposed plaintiff's application by letter, which the court deemed to be an answer.
Summary of this case from Juliani v. NahoraiOpinion
March 7, 1996
Appeal from the Supreme Court, New York County (Paula Omansky, J.).
Plaintiff was relieved from legal representation of defendant in a New Jersey probate proceeding, and a judgment was entered in New Jersey in the amount of $45,751.84, representing plaintiff's legal fee, after a hearing at which defendant did not appear personally, but rather opposed plaintiff's entitlement to a fee by letter. Plaintiff filed the New Jersey judgment in Supreme Court, New York County, pursuant to CPLR article 54. Defendant's argument that the New Jersey judgment was obtained by "default in appearance" (CPLR 5401) is without merit since the New Jersey court's order noted that defendant wrote "in opposition thereto." The exception in the Uniform Enforcement of Judgments Act for judgments obtained by default in appearance was designed to exclude judgments obtained by "sewer service", a circumstance clearly not present here ( L W Air Conditioning Co. v Varsity Inn, 82 Misc.2d 937, 938, affd 56 A.D.2d 735; Paden v Warnke, 110 Misc.2d 61, 63-64; Tatick v Tatick, 119 Misc.2d 729, 732). Defendant's claims of fraud and malpractice represent collateral attacks on the New Jersey judgment, and were properly rejected, as were defendant's attempts to raise entirely new issues on reargument and to submit, without sufficient excuse, new facts on renewal. Reargument does not provide a party "an opportunity to advance arguments different from those tendered on the original application" ( Foley v Roche, 68 A.D.2d 558, 568), and renewal "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" ( Matter of Beiny, 132 A.D.2d 190, 210, lv dismissed 71 N.Y.2d 994; see also, Matter of Barnes v State of New York, 159 A.D.2d 753, lv dismissed 76 N.Y.2d 935).
Concur — Ellerin, J.P., Rubin, Ross, Williams and Tom, JJ.