State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 17, 2015 519823
________________________________
SHIRLEY HE,
Appellant,
v MEMORANDUM AND ORDER
SIEMENS ENERGY, INC., et al.,
Respondents.
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Calendar Date: October 16, 2015
Before: McCarthy, J.P., Egan Jr., Rose and Devine, JJ.
__________
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.
__________
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 AD3d 1386 [2015],
lv denied 26 NY3d 904 [2015]; Xiaoling Shirley He v Xiaokang Xu,
126 AD3d 1052 [2015]; He v Realty USA, 121 AD3d 1336 [2014], lv
dismissed and denied 25 NY3d 1018 [2015]; Xiaokang Xu v Xiaoling
-2- 519823
Shirley He, 77 AD3d 1083 [2010]; Xiaokang Xu v Xiaoling Shirley
He, 24 AD3d 862 [2005], lv denied 6 NY3d 710 [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 NY Slip Op 92933[U]), 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
AD2d 762, 765 [1989], lv denied 75 NY2d 701 [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 AD2d 829, 830
[1995], quoting CPLR 5015 [a] [1]; see Doane v Kiwanis Club of
-3- 519823
Rotterdam, N.Y., Inc., 128 AD3d 1309, 1310 [2015]). Assuming,
without deciding, that plaintiff established a reasonable excuse
for her default (but see Jaffery v MacMillan & Webb Enters.,
Inc., 27 AD3d 422, 422-423 [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 214 [4], [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 213 [8]). 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 NY
247, 261 [1879]; see Specialized Indus. Servs. Corp. v Carter, 68
AD3d 750, 751-752 [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 AD3d 1076, 1078 [2008]).
McCarthy, J.P., Egan Jr. and Rose, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court