| Shamshovich v Shvartsman |
| 2013 NY Slip Op 06847 [110 AD3d 975] |
| October 23, 2013 |
| Appellate Division, Second Department |
| Rita Shamshovich, Appellant, v YakovShvartsman et al., Defendants, and Samuel Racer,Respondent. |
—[*1] Samuel Racer, Brooklyn, N.Y., respondent pro se.
In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiffappeals from an order of the Supreme Court, Kings County (Lewis, J.), dated March 9,2012, which granted the motion of the defendant Samuel Racer to vacate a judgment ofthe same court entered October 1, 2010, upon an order of the same court datedSeptember 6, 2000, made upon the failure of the defendant Samuel Racer to appear oranswer the complaint, which was in favor of the plaintiff and against him in the total sumof $656,084.
Ordered that the order dated March 9, 2012, is reversed, on the law, with costs, themotion of the defendant Samuel Racer to vacate the judgment is denied, and thejudgment is reinstated.
After an inquest on September 6, 2000, the plaintiff was awarded judgment againstthe defendant Samuel Racer in the sum of $296,000, "with interest from the date ofservice of the complaint, plus costs and disbursements." However, the plaintiff did notsubmit a proposed judgment for entry to the Supreme Court until October 1, 2010. In theproposed judgment, the plaintiff "waive[d] costs and disbursements." In a notice ofappeal filed on November 8, 2010, Racer appealed from the judgment; however, theappeal was thereafter dismissed by decision and order on motion of this Court dated July29, 2011, for failure to perfect. Pursuant to an order to show cause dated January 17,2012, Racer moved to vacate the judgment, arguing that, pursuant to 22 NYCRR 202.48,the plaintiff had abandoned the action "by failing to enter a . . . judgmentover a period of ten years." The Supreme Court granted the motion without explanation.
22 NYCRR 202.48, entitled "[s]ubmission of orders, judgments and decrees forsignature," states in pertinent part:
"(a) Proposed orders or judgments, with proof of service on all parties where theorder is directed to be settled or submitted on notice, must be submitted forsignature, unless otherwise directed by the court, within 60 days after the signing andfiling of the decision directing that the order be settled or submitted.
"(b) Failure to submit the order or judgment timely shall be deemed an abandonment[*2]of the motion or action, unless for good causeshown" (emphasis added).
However, "the 60-day rule logically applies only where further court involvement inthe drafting process is contemplated before entry" (Funk v Barry, 89 NY2d 364,368 [1996]). Here, the order dated September 6, 2000, which awarded judgment to theplaintiff, contained no direction to settle or submit a judgment on notice. Thus, contraryto Racer's contention, the 60-day rule of 22 NYCRR 202.48 is inapplicable because nojudicial action was necessary before entry of the money judgment (see Farkas v Farkas, 11 NY3d300, 309 [2008]; Matter ofVillage of Dobbs Ferry v Stanley Ave. Props., Inc., 95 AD3d 1027, 1029[2012]; Chang v Botsacos,92 AD3d 610 [2012]; Glacial Aggregates LLC v Town of Yorkshire, 85 AD3d1591 [2011]; Matter ofMatthew L., 85 AD3d 917, 918 [2011]; Workers' Compensation Bd. of State of N.Y. v Rizzi, 14 AD3d608, 609 [2005]; Sarasota,Inc. v Finkel, 11 AD3d 407 [2004]; Peerless Ins. Co. v Casey, 194AD2d 411, 412 [1993]). Consequently, 22 NYCRR 202.48 did not serve as a basis forgranting Racer's motion to vacate the judgment.
Contrary to Racer's contention, he failed to demonstrate any other basis to vacate themoney judgment. Pursuant to CPLR 5015 (a), a court may vacate an order or judgmenton several different grounds, including the fraud, misrepresentation, or other misconductof an adverse party. Racer failed to establish that the money judgment issued in favor ofthe plaintiff was procured through fraud, misrepresentation, or other misconduct (seeWoodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; Dowlah v Dowlah, 89 AD3d675, 676 [2011]; Galasso,Langione & Botter, LLP v Liotti, 81 AD3d 884, 885 [2011]; Katz v Marra, 74 AD3d888, 890-891 [2010]), or that any of the other statutory grounds for vacatur set forthin CPLR 5015 (a) apply (seeAlderman v Alderman, 78 AD3d 621 [2010]). There was also no showing ofany basis whereby the Supreme Court could have invoked its inherent power to vacatethe money judgment in the interest of substantial justice (see Woodson v MendonLeasing Corp., 100 NY2d at 68; Matter of McKenna v County of Nassau, Off. ofCounty Attorney, 61 NY2d 739 742 [1984]; Galasso, Langione & Botter, LLP vLiotti, 81 AD3d at 885; Alderman v Alderman, 78 AD3d at 622).Accordingly, the court should have denied Racer's motion to vacate the money judgment.
We decline the requests made by the plaintiffs and Racer in their respective appellatebriefs for the imposition of sanctions against each other (see generally 22NYCRR 130-1.1). Rivera, J.P., Sgroi, Cohen and Hinds-Radix, JJ., concur.