Mayer v Vilar

Mayer v Vilar 2014 NY Slip Op 00190 Decided on January 14, 2014 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 January 14, 2014
Sweeny, J.P., Renwick, Andrias, Freedman, Feinman, JJ. 11479-
603234/04 11480

[*1]Lisa Mayer, et al., Plaintiffs-Respondents,

v

Alberto Vilar, Defendant-Appellant, Gary Tanaka, et al., Defendants.




Robinson Brog Leinwand Greene Genovese & Gluck P.C.,
New York (David C. Burger of counsel), for appellant.
Begos Brown & Green LLP, Bronxville (Patrick W. Begos of
counsel), for respondents.

Supplemental judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered April 17, 2012, awarding plaintiffs damages for breach of contract and vacating a stay of execution, and second supplemental judgment, same court and Justice, entered October 23, 2012, awarding attorneys' fees pursuant to General Business Law § 349, unanimously affirmed, with costs.

In light of the lengthy period since the seizure of defendants' assets in May 2005 and plaintiffs' unrebutted assertions of dire financial circumstances, among other factors, the court properly exercised its inherent power to vacate its own stay of execution of the judgments to be entered (see Wellbilt Equip. Corp. v Red Eye Grill, 308 AD2d 411 [1st Dept 2003]). We note, further, that defendant defaulted at the scheduled trial resulting in the vacatur order, which precludes his right to appeal the vacatur (see Matter of Nyree S. v Gregory C., 99 AD3d 561, 562 [1st Dept 2012], lv denied 20 NY3d 854 [2012]).

Defendant failed to provide the transcript and exhibits from the damages trial establishing plaintiffs' losses of certain properties and insurance policies (see Matter of Taschereau, 93 AD3d 532 [1st Dept 2012], lv denied 19 NY3d 808 [2012]). Contrary to the contention in his appellate reply brief, the trial determined issues of fact and not of law, rendering the submission of the evidence a necessary element of his appeal. The evidence sufficiently established the causation and the amount of damages (see generally Gibbs v Breed, Abbott & Morgan, 271 AD2d 180, 188-189 [1st Dept 2000]).

Notwithstanding defendant's assertion that plaintiffs' counsel attempted to subvert a federal restraint by bringing a separate turnover action, the contingency fee award is reasonable; notably, the fee arrangement preceded the October [*2]
2009 federal restraint, defendant's federal conviction and the resulting order of restitution.

We have considered defendant's other contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 14, 2014

CLERK