Anchor Sav. Bank v Parker

[*1] Anchor Sav. Bank v Parker 2006 NY Slip Op 50071(U) [10 Misc 3d 1074(A)] Decided on January 20, 2006 Supreme Court, Nassau County Phelan, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2006
Supreme Court, Nassau County

ANCHOR SAVINGS BANK, Plaintiff(s),

against

ALFRED PARKER, Defendant(s).



13164/05



Kirschenbaum & Phillips, P.C.

Attn: Steven L. Rosenthal, Esq.

Attorneys for Plaintiff

106 East Jericho Turnpike

Mineola, NY 11501

Alfred Parker

Defendant, Pro Se

21 Sunset Avenue

Hicksville, NY 11801

Thomas P. Phelan, J.

Motion by plaintiff Anchor Savings Bank for an order pursuant to CPLR 3212 awarding it summary judgment against defendant renewing the lien of judgment stemming from Anchor Savings Bank FSB v Alfred Parker, index #

31324/92 (the underlying action) in accordance with CPLR 5014 is granted.

Cross-motion by defendant for an order pursuant to CPLR 5015(2) and (3) vacating the default judgment entered August 4, 1993 in the underlying action is denied.

On or about July 26, 2003, plaintiff was awarded a judgment against defendant in the underlying action in the total amount of $17,123.05 which was thereafter docketed in the Office of the Nassau County Clerk on August 4, 1993. The judgment remains unsatisfied, although the sum of $335.00 was paid by defendant apparently to satisfy a fine imposed by order of the Hon. Marvin E. Segal entered August 9, 2001, who found defendant in contempt for failing to comply with a subpoena to testify under oath in enforcement proceedings in the underlying action.

Plaintiff commenced this action in or about October, 2005 to obtain a new judgment for the outstanding balance now due in the amount of $35,767.00.

Pursuant to CPLR 5014(1), an action upon a money judgment may be maintained between the original parties where ten years has elapsed since the judgment was originally docketed (Pangburn v Klug, 244 AD2d 394, 395 [2nd Dept. 1997]). As held in First National Bank of Long Island v Brooks, (1 Misc 3d 905(A) [Sup. Ct., Nassau Co., Gartner, J.]) a judgment creditor is able to obtain a new twenty-year judgment, and new ten-year lien on real property, through an action against the debtor to renew the judgment even if the creditor's lien had lapsed because he waited longer than the minimum ten-year period for renewing the lien.

In response to plaintiff's motion papers, defendant has failed to offer any legally cognizable basis to deny the requested relief. His cross-motion to vacate the judgment herein pursuant to CPLR 5015(2) and/or CPLR 5015(3) is unpersuasive. Neither the affidavit of Mr. Michael Dorrough nor anything stated therein constitutes newly discovered evidence, i.e., evidence that is material as to the merits of the case, which could not, despite due diligence, have been discovered in time to more for a new trial, and would, in all probability, produce a different result if a new trial is had (S.A.B. Enterprises Inc. v Stewart's Ice Cream Co., Inc., 242 AD2d 845 [3rd Dept. 1997], leave to appeal dismissed 91 NY2d 848 [1997]). Rather, the affiant states only that defendant, after discovering the existence of a default judgment, allegedly through internet research, "steadfastly asserted that he did not owe the debt but that the amount and listed creditor seemed to correlate with an old auto loan taken out in the mid 1980's." Further the affiant states that defendant informed him that "his insurance company had assured him at the time that he was fully indemnified and that any judgment must have been an error based on the fact that he had never been served with any papers regarding any court process."

The vague conclusory assertions of an individual who "personally encouraged and assisted defendant Alfred Parker to clear up various debts in anticipation of a business relationship" constitute neither newly discovered evidence nor a sufficiently particularized showing of any fraud or misrepresentation or other misconduct on the part of plaintiff which would warrant relief from the judgment herein.

Defendant's Memorandum of Law, replete with conclusory assertions suggesting that the original claim was either "misdirected" or a "sham"; that plaintiff is improperly attempting to collect the same debt from defendant's insurer as well as from defendant; and that defendant's attorney was either complicit and/or negligent, fails to raise a bona fide issue of fact sufficient to preclude summary judgment in plaintiff's favor. Mere conclusory assertions, devoid of evidentiary facts, are insufficient to defeat a well supported summary judgment motion, as is reliance on conjecture, surmise or speculation (Grullon v City of New York, 297 AD2d 261 [1st Dept. 2002]). Defendant's claim that the affidavit of service dated July 28, 1998, with respect to a subpoena duces tecum to take deposition of judgment debtor with restraining notice, is grossly inaccurate does not provide a basis to vacate the default judgment entered in 1993.

Accordingly, plaintiff's motion for summary judgment is granted. Judgment for the balance remaining shall be submitted to the Clerk for entry and docketing.

Cross-motion by defendant to vacate the default judgment herein pursuant to CPLR 5015(2) and/or CPLR 5015(3) is denied.

This decision constitutes the order of the court.

Dated: January 20, 2006 THOMAS P. PHELAN

J.S.C.

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