SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1229
CA 11-00889
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.
CHASE LINCOLN FIRST BANK, N.A.,
PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
KENT R. DEHAAN, DEFENDANT-APPELLANT.
LANCE J. MARK, PLLC, MEDINA (LANCE J. MARK OF COUNSEL), FOR
DEFENDANT-APPELLANT.
MANFREDI LAW GROUP, PLLC, NEW YORK CITY (JOHN MANFREDI OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Monroe County (John J.
Ark, J.), dated August 2, 2010. The order, inter alia, denied the
cross motion of defendant to vacate a judgment entered April 4, 1990.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: By order to show cause, plaintiff’s assignee,
Premier Capital, Inc. (Premier), sought, inter alia, an order
extending and renewing a default judgment entered in 1990 against
defendant. Premier correctly concedes that its order to show cause
was “procedurally unsound” and that the proper course was to commence
an action on the judgment. Supreme Court treated that part of the
order to show cause as a motion seeking leave to commence such an
action pursuant to CPLR 5014 (3) and granted Premier that relief. No
prejudice to defendant resulted from the court’s action inasmuch as
Premier was entitled to commence an action for a renewal judgment
without permission pursuant to CPLR 5014 (1) (see generally Schiff
Food Prods. Co., Inc. v M&M Import Export, 84 AD3d 1346, 1348;
Pangburn v Klug, 244 AD2d 394).
We reject defendant’s contention that the court erred in
calculating the period in which Premier was entitled to commence an
action on the judgment by excluding the period that his bankruptcy
proceeding was pending (see CPLR 204 [a]; 11 USC § 362 [c] [2]).
Contrary to defendant’s further contention, Premier, as assignee of
the judgment, “is an ‘original party’ ” for the purpose of renewal
(Cadle Co. v Biberaj, 307 AD2d 889, 889). Finally, the court properly
denied defendant’s cross motion to vacate the judgment pursuant to
CPLR 5015 (a) (3) inasmuch as the evidence establishes that defendant
had knowledge of the alleged fraud before entry of the final judgment
-2- 1229
CA 11-00889
(see Summer v Summer, 233 AD2d 881, lv dismissed 89 NY2d 981) and, in
any event, the cross motion was not made within a reasonable time (see
Miller v Lanzisera, 273 AD2d 866, 868, appeal dismissed 95 NY2d 887,
96 NY2d 731).
Entered: November 10, 2011 Patricia L. Morgan
Clerk of the Court