Benedicto v De Guzman

[*1] Benedicto v De Guzman 2015 NY Slip Op 51570(U) Decided on October 26, 2015 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., IANNACCI and TOLBERT, JJ.
2013-1390 N C

Jesus Martinez Benedicto, Appellant,

against

Domingo P. De Guzman, Doing Business as GEMARS GROUP, and ARTHUR MORAL, Doing Business as GEMARS GROUP, Respondents.

Appeal from an order of the District Court of Nassau County, First District (David W. McAndrews, J.), dated June 14, 2013. The order denied plaintiff's motion to, in effect, set aside a decision after trial and the judgment entered pursuant thereto.

ORDERED that the order is affirmed, without costs.

Plaintiff commenced this small claims action to recover the money he had invested in Gemars Group, Inc., a now dissolved corporation, of which defendants had been shareholders. Following a nonjury trial, the District Court, in a written decision dated April 10, 2013, awarded judgment to defendants and, on April 11, 2013, a judgment was entered pursuant to the decision. More than 40 days after the court's decision, plaintiff moved "for an Order to reconsider and/or reverse the Judgment of the Court dated April 10, [sic] 2013." By order dated June 14, 2013, the District Court denied plaintiff's motion.

Plaintiff's motion, deemed one pursuant to CPLR 4404 (b) to set aside the decision and the judgment entered pursuant thereto, was not made within 15 days after the District Court's written decision dated April 10, 2013 (see CPLR 4405) and failed to demonstrate good cause for the delay (see CPLR 2004). Consequently, the District Court did not improvidently exercise its discretion in denying plaintiff's motion (see Turco v Turco, 117 AD3d 719, 723 [2014]; Brzozowy v ELRAC, Inc., 39 AD3d 451, 453 [2007]; Huggins v Velaoras, 24 Misc 3d 141[A], 2009 NY Slip Op 51722U] [App Term, 2d, 11th & 13th Jud Dists 2009]). We note that the grounds proffered by plaintiff in support of his motion would similarly not entitle him to relief under CPLR 5015.

Accordingly, the order is affirmed.

Marano, P.J., Iannacci and Tolbert, JJ., concur.

Decision Date: October 26, 2015