Condor Capital Corp. v Stumper

[*1] Condor Capital Corp. v Stumper 2016 NY Slip Op 51086(U) Decided on July 8, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 8, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., GARGUILO and BRANDS, JJ.
2015-1320 S C

Condor Capital Corp., Respondent,

against

Robert Stumper, Appellant.

Appeal from an order of the District Court of Suffolk County, First District (Vincent J. Martorana, J.), dated May 8, 2015. The order denied defendant's motion for leave to renew his prior motion to vacate a default judgment, which motion had been denied in an order of the same court entered December 17, 2014.

ORDERED that the order entered May 8, 2015 is affirmed, without costs.

In this action to recover for breach of an assigned retail installment contract, a default judgment was entered in 2008. In 2014, defendant moved to vacate the default judgment, alleging that he had a meritorious defense to the action and a reasonable excuse for his default. That motion was denied, and defendant subsequently moved for leave to renew his motion, claiming that there were newly discovered facts which would have changed the prior determination (see CPLR 2221 [e]). Defendant appeals from an order of the District Court denying his subsequent motion.

In support of his motion for leave to renew, defendant offered proof that plaintiff had recently settled charges against it brought by the New York State Department of Financial Services for fraudulent business practices. However, defendant offered no proof that the transaction in this case was similar to those underlying the action brought by the Department of Financial Services. Similarly, defendant has never stated that any entry in the accounting statement provided by plaintiff was incorrect or that defendant does not, in fact, owe the money sought by plaintiff. We find that, without more, defendant's claim that the newly discovered evidence would have changed the prior determination is speculative (see Abu Dhabi Commercial Bank, P.J.S.C. v Credit Suisse Sec. [USA] LLC, 114 AD3d 432 [2014]), and, thus, defendant's motion was properly denied.

Accordingly, the order is affirmed.

Marano, P.J., Garguilo and Brands, JJ., concur.

Decision Date: July 08, 2016