| Grinshpun v Borokhovich |
| 2017 NY Slip Op 01662 |
| Decided on March 7, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on March 7, 2017
Acosta, J.P., Richter, Manzanet-Daniels, Gische, Webber, JJ.
3342N 115376/10
v
Gennady Borokhovich, (also known as Eugene) Defendant-Appellant, Vitaly Zaretsky, Defendant.
Krol & O'Connor, New York (Igor Krol of counsel), for appellant.
Michael Konopka & Associates, P.C., New York (Michael Konopka of counsel), for respondents.
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered November 9, 2015, which denied defendant Gennady Borokhovich's motion to vacate the default judgment entered November 11, 2011, unanimously affirmed, with costs.
Defendant failed to show, in support of vacatur pursuant to CPLR 5015(a)(2), that the agreements in which plaintiffs allegedly released him from liability "could not have been previously discovered by the exercise of due diligence" (Prote Contr. Co. v Board of Educ. of City of N.Y., 230 AD2d 32, 39 [1st Dept 1997]). Defendant has been in possession of the agreements since the inception of the litigation. While he claims that he was unable to access the agreements due to hurricane damage to his home office and marital difficulties, lack of access did not prevent him from alerting the court to their existence. Defendant claims that he did not know of the releases. However, he admits knowing that plaintiffs "promised to release him" and that, in consideration for one of the agreements, he was to be "left in peace." This knowledge should have prompted further inquiry. At the very least, defendant should have brought the November 2006 release to the court's attention when it was produced to his attorneys, one year before the instant motion was made.
Defendant failed to show, in support of vacatur pursuant to CPLR 5015(a)(3), the existence of fraud (see Thakur v Thakur, 49 AD3d 861 [2d Dept 2008]; see also Sanchez v Avuben Realty LLC, 78 AD3d 589, 590 [1st Dept 2010]). We note, moreover, that his motion was not brought within a reasonable time (see Mark v Lenfest, 80 AD3d 426, 426 [1st Dept 2011]).
Defendant's arguments with respect to the necessity of an inquest and the merits of [*2]plaintiffs' claims are foreclosed by our prior order upholding the default judgment (see Grinshpun v Borokhovich, 100 AD3d 551 [1st Dept 2012], lv denied 21 NY3d 857 [2013]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 7, 2017
CLERK