Finkelstein, Newman, Ferrara LLP v Pars Auto Repair

[*1] Finkelstein, Newman, Ferrara LLP v Pars Auto Repair 2015 NY Slip Op 51394(U) Decided on October 1, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 1, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570289/14

Finkelstein, Newman, Ferrara LLP f/k/a Finkelstein Newman LLP, Plaintiff-Respondent, -

against

Pars Auto Repair d/b/a Pars Auto Repair Inc., and Farhad Boukani, Defendants-Appellants.

Defendants, as limited by their briefs, appeal from so much of an order of the Civil Court of the City of New York, New York County (Kathryn E. Freed, J.), dated October 21, 2014, which denied their motion to vacate a default judgment.

Per Curiam.

Order (Kathryn E. Freed, J.), dated October 21, 2014, modified to vacate the portion of the judgment dated March 30, 2011 awarding plaintiff $42,377.80 in collection costs; as modified, order affirmed, without costs.

Civil Court properly denied those branches of defendants' motion to vacate the default judgment pursuant to CPLR 5015(a)(3) and (4). The record contains no evidence of fraud, misrepresentation or other misconduct in the procurement of the judgment (see Citicorp Vendor Fin., Inc. v Island Garden Basketball, Inc., 27 AD3d 608, 609 [2006]), and any alleged defect in the underlying attorney retainer agreement does not constitute a jurisdictional defect. Nevertheless, in the exercise of our inherent authority to review the amount of damages awarded on default (see Quigley v Coco's Water Café, Inc., 43 AD3d 1132, 1133 [2007]), we vacate that portion of the judgment which awarded plaintiff the principal sum of $42,377.80 in collection costs. That portion of the judgment is based upon an attorneys' fees provision in the underlying retainer agreement that is not enforceable due to its non-reciprocal character (see Arfa v Zamir, 55 AD3d 508, 509 [2008]; Ween v Dow, 35 AD3d 58 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: October 01, 2015