| Lambert v Schreiber |
| 2012 NY Slip Op 04138 [95 AD3d 1282] |
| May 30, 2012 |
| Appellate Division, Second Department |
| Donald Lambert, Respondent, v Laurence E. Schreiber,Appellant. |
—[*1] Cahn & Cahn, LLP, Huntington, N.Y. (Daniel K. Cahn of counsel), for respondent.
In an action, inter alia, to recover damages for breach of a contract for the sale of realproperty and for specific performance of that contract, the defendant appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated May 26,2011, as denied his motion pursuant to CPLR 5015 (a) (3) to vacate a judgment of the same courtentered April 25, 2007, upon his default in appearing or answering.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant previously moved pursuant to CPLR 5015 (a) (1) to vacate the judgmententered upon his default in this action, in which the plaintiff was awarded the principal sum of$844,700. The Supreme Court granted the defendant's motion, and, upon reargument, adhered tothat determination. However, on appeal, this Court reversed, and denied the defendant's motionto vacate the judgment (see Lambert vSchreiber, 69 AD3d 904 [2010]). Thereafter, the defendant again moved, this timepursuant to CPLR 5015 (a) (3), to vacate the judgment. The defendant argued, inter alia, that theplaintiff had misrepresented the amount of damages to which the plaintiff was entitled, and thatthe default judgment should consequently be vacated upon the ground of misrepresentation andin the interest of justice. The Supreme Court denied the motion.
Although a court has the inherent discretionary power to vacate a default judgment (see Rukeyser v Richardson, 43 AD3d815 [2007]), under the circumstances of this case we decline to exercise that power. Nearlyfive years ago, when the defendant first moved to vacate the judgment entered upon his default,he had the opportunity to challenge the propriety of damages awarded on the basis of theplaintiff's alleged misrepresentations. Indeed, "[t]his ground was no less apparent at the time ofthe making of [the] defendant's first motion than at the time of the making of his second motion"(Bianco v Dougherty, 54 AD2d 681, 681 [1976]; see Matter of Thrall v CNY Centro, Inc., 89 AD3d 1449, 1450[2011]; Peck v Ernst Bros., 86 AD2d 692 [1982]). Since the defendant failed to raise thatground as a basis for vacating the judgment on his prior motion, the Supreme Court did notimprovidently exercise its discretion in denying the defendant's instant motion pursuant to CPLR5015 (a) (3) to vacate the judgment. Mastro, A.P.J., Florio, Chambers and Roman, JJ., concur.