Mateo v Vargas

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Mateo v Vargas 2013 NY Slip Op 30503(U) March 7, 2013 Supreme Court, New York County Docket Number: 602043/2009 Judge: Anil C. Singh Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] -. SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY . . m M . C$SlNGH PRESENT: 1 PART 4) Justice ' Index Number : 602043/2009 MATEO, FERNANDO vs. VARGAS, HENRY SEQUENCE NUMBER : 013 - MOTION DATE 0/ . I MOTION SLQ.NO. STAY PROCEEDINGS The following papem, numbered 1 to 2iW4k reqd on this motion tolfor Notice of NlotionlOder to Show Cause Answering Affldavits Replying Affidavits - Exhibits -Afndavits -Exhibits 1 I NOW. 2- INo(m)* Upon the foregoing papers, It is ordered that this motion is bc\c IW S ) . b n f i c d /nma/&dnrc d e ~ I 4d G ~ fBa0 C CCO C tk P A ~ ~ A . e 1. CHECK ONE a NON-FINAL DlSPOSlTlON .....................................................................0CASE DISPOSED 2. CHECK AS APPROPRIATE: ,..,....,..................llllOflON 3. CHECK IF APPROPRIATE: IS: 1 GRANTED 7 il DENIED 2 ................................................ 0SElTLE ORDER 0DO NOT POST 0GRANTEDIN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Index No. 602043/2009 -against- HENRY VARGAS, AKERMAN SENTERFITT and MADISON REALTY INC., Defendants. HON.ANIL C.SINGH, J.: Motion sequence numbers 0 1 3 , O 14, and 0 15 are consolidated for disposition. In motion sequence 0 13, defendant Henry Vargas, pro se, moves for an order pursuant to CPLR 2201 staying further proceedings in this action or, in the alternative, staying the damages trial in this action. Plaintiffs oppose the motion. In motion sequence 0 14, Vargas moves, as third-party plaintiff, for an order I Page 1 of 5 [* 3] pursuant to CPLR 32 15 entering a default judgment against third-party defendant Peter Skyllas. In motion sequence 0 15, defendant moves for an order either: 1) pursuant to CPLR 222 1, granting defendant leave to renew his prior motion to dismiss the sole cause of action against him and plaihtiffs cross-motion for summary judgment and, upon renewal, dismissing the cause of action against him and denying plaintiffs cross-motion for summary judgment in its entirety; or 2) pursuant to CPLR SO 15, vacating the decision and order of Hon. Paul G. Feinman dated February 1,20 12, which denied Vargas motion to dismiss and granted (as to liability only) plaintiffs cross-motion for summary judgement; or 3) pursuant to the Court s general powers, vacating Judge Feinman s order, Plaintiffs oppose the motion. The facts of this matter are set forth fully in Judge Feinman s memorandum opinion dated February 1,20 12. I. Motion for Stay Defendant contends that a stay is appropriate because he is extremely confident that his appeal will be successful; that a stay fosters judicial economy; and that a stay would avoid unnecessary time and expense being incurred bythe parties since, if his appeal is ultimately successful, any discovery proceedings and Page2of 5 [* 4] damages trial would be for naught: CPLR 2201 provides that the court may grant a stay of proceedings in a proper case, upon such terms as may be just. Contrary to defendant s contention, it appears highly unlikely that defendant s appeal will be successful. In this regard, the Court notes that defendant pleaded guilty to attempted grand larceny in the first degree and forgery in the second degree (Mateo v. Varizas, 34 Misc.3d 1222(A) [Sup. Ct., N.Y. Cty,, 20 121). He admitted that he had fraudulently passed himself off as the majority owner of the Lenox Avenue building and made false statements and forged documents to trick investors into believing he was the majority owner of the LLC that owned the building (a). In light of defendant s criminal conviction, the likelihood of defendant succeeding in his appeal in this civil action, which arises f o the same conduct as rm the criminal case, is virtually nil. Accordingly, the application for a stay is denied. 11. Motion for Default Judgment Third-party plaintiff Henry Vargas is moving for a default judgment against third-party defendant Peter Skyllas. Henry Vargas states in a sworn affidavit that the third-party defendant was served with the third-party summons and complaint in August or September 2009. Page 3 of 5 [* 5] He contends that an affidavit of sirnice was duly filed with respect to such service upon Skyllas, the exact dates being unavailable to movant due to his current incarceration however this Court has access to such documentation. The Court has reviewed all of the documents filed in this case on the Supreme Court Records Online Library ( SCROLL ) website and the County Clerk s file. The third document listed on SCROLL is plaintiffs third-party summons and complaint. There is no affidavit of service on SCROLL stating that the third-party defendant was served, nor is there such an affidavit inthe County Clerk s file. Because there is no documentary evidence that movant ever served the third-party defendant with the third-party summons and complaint, movant is not entitled to a default judgment. 111. Motion to Renew or Vacate Order The rule that a motion for renewal be based upon newly discovered evidence is a flexible one, and a court, in its discretion, may grant renewal even where the additional facts were known to the party seeking renewal at the time of the original motion, provided the moving party offers a reasonable justification for the failure to submit the additional facts on the original motion (Grantat v. Walbaum s Inc., 289 AD2d 289,290 [2nd Dept. 20011 (other citations omitted)). Page4 of 5 [* 6] The Court in its discretion finds that the motion to renew has no merit. Accordingly, it is ORDERED that the motion of defendant to stay proceedings (0 13) is denied; and it is further ORDERED that the motion of defendant for default Judgment (0 14) is denied; and it is further ORDEFED that the motion of defendant for leave to renew his motion to dismiss and plaintiffs cross-motion for summary judgment (015 ) is denied. The foregoing constitutes the decision and order of the court. J Date: 31 3 I 3 New York, New York - Page5of 5

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