SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1200
CA 14-00773
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ.
PREMIER CAPITAL, INC., PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
KENT R. DEHAAN, DEFENDANT-RESPONDENT.
LECLAIR RYAN, P.C., ROCHESTER (MICHAEL J. CROSNICKER OF COUNSEL), FOR
PLAINTIFF-APPELLANT.
LANCE J. MARK, PLLC, MEDINA (LANCE J. MARK OF COUNSEL), FOR
DEFENDANT-RESPONDENT.
Appeal from a judgment and order (one paper) of the Supreme
Court, Monroe County (John J. Ark, J.), entered July 24, 2013. The
judgment and order, insofar as appealed from, denied that part of the
motion of plaintiff for summary judgment, granted the cross motion of
defendant for summary judgment and dismissed the complaint.
It is hereby ORDERED that the judgment and order insofar as
appealed from is unanimously reversed on the law without costs, the
cross motion is denied, the complaint is reinstated and that part of
the motion seeking summary judgment is granted, and the matter is
remitted to Supreme Court, Monroe County, for entry of a renewal
judgment in favor of plaintiff.
Memorandum: On a prior appeal, this Court concluded that
plaintiff, as assignee of a default judgment entered against
defendant, “was entitled to commence an action for a renewal judgment
without permission pursuant to CPLR 5014 (1)” (Chase Lincoln First
Bank, N.A. v DeHaan, 89 AD3d 1476, 1477). While that appeal was
pending, plaintiff commenced such an action, and thereafter moved,
inter alia, for summary judgment. We conclude that Supreme Court
erred in denying plaintiff’s motion insofar as it sought summary
judgment and granting defendant’s cross motion for summary judgment
dismissing the complaint, and we therefore remit the matter to Supreme
Court for entry of a renewal judgment in favor of plaintiff.
Plaintiff established its entitlement to judgment as a matter of
law “by demonstrating the existence of the prior judgment, that the
defendant was the judgment debtor, that the judgment was docketed at
least nine years prior to the commencement of th[e] action, and that
the judgment remains . . . unsatisfied” (Rose v Gulizia, 104 AD3d 757,
758; see CPLR 5014; Premier Capital, LLC v Best Traders, Inc., 88 AD3d
677, 678). In opposition, defendant failed to raise a triable issue
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CA 14-00773
of fact (see Pangburn v Klug, 244 AD2d 394, 395; see generally
Zuckerman v City of New York, 49 NY2d 557, 562). We reject
defendant’s contention that the action is barred by laches inasmuch as
“laches is an equitable defense which is unavailable [here, i.e.,] in
an action at law commenced within the period of limitation” (Premier
Capital, LLC, 88 AD3d at 678). Finally, contrary to defendant’s
further contention, plaintiff’s commencement of another action seeking
identical relief did not implicate the doctrine of election of
remedies (see generally Matter of City of Syracuse v Fitch St. Props.,
LLC, 71 AD3d 1388, 1389).
Entered: November 21, 2014 Frances E. Cafarell
Clerk of the Court