Renaissance Economic Dev. Corp. v Jin Hua Lin

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Renaissance Economic Dev. Corp. v Jin Hua Lin 2013 NY Slip Op 34164(U) June 3, 2013 Supreme Court, New York County Docket Number: 102313/11 Judge: Eileen A. Rakower Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Lf. i SUPREME COUR1f OF THE STATE OF NEW YORK COUNTY OF NEWj YORK: PART 15 --------------------------------------------------------------------------)( I RENAISSANCE E~ONOMIC DEVELOPMENT CORPORATION, I Plaintiff, Index No. 102313/11 I DECISION and ORDER j -against JIN HUA LIN, owner in fee of premises commonly known as: 44-46 M~dison Street, #lOA, New York, NY 10002; and Mafison Tower, 148 MadisonStreet, 9A, New York, NY,10002, Mot. Seq. 03, 04 ...... ·- ·---. f I LE D Respondent. ------------------------r--------------------------------Jt:JN--10-e--)( HON. EILEEN A. RAK/OWER NEWVORK COUNlY CLERK'SO~ ~ .?n Decembe~I23, 2? 10, Petitione~ Renaissance Eco~omict77vfelopment, Corp. ("Petitioner") dock~ted a Judgment agamst Respondent J m Hua Lm· ("Respondent") in the amount of $208,951.06. I I Petitioner cobenced this action by filing a Notice of Petition and Petition I dated February 22, 2011 in which Petitioner, in an effort to satisfy the outstanding judgment against P~itioner, sought the Court's permission pursuant to CPLR §5240 for permission to sell Respondent's properties located at: 44-46 Market Street# 1OA, New York, New Yrirk 10002, and 148 Madison Street, 9A, New York, New York 10002. In that P9tition, Petitioner "respectively requested that the judgment of Renaissance be satiFfied in whole or in part by the sale of the said real properties, subject to the Homrtead exemption - if applicable." I Respondent~id not interpose an answer to Petitioner's Petition or otherwise appear. By Order ated January 23, 2012, the Court granted Petitioner's relief, and ordered the sale of Respondent's properties. That Order also provided, "Ordered, · Adjudged, and Dec~eed that Jin Hua Lin's has not and does not own and occupy the Premises as her primcipal residence, and is therefore not entitled to the Homestead Exemption N.Y. C LR 5206." 1 [* 2] I . On August 2ol 2012, the Sheriff auctioned the properties off and Petitioner had the winning bid anditook fee simple absolute title to the properties at issue. Respondent nlw moves by Order to Show Cause for an Order (Mot Seq. 1): ( 1) directing Petitioner ~o pay Respondent "her homestead exemption in the amount of $150,000 and credi~ $70,000 towards her judgment from the $220,000 proceedings from the $220,000 proceeds from the sales of petitioner of respondent's homesteads of 44-46 Market s,reet, #lOA, New York, NY 10002 and Madison Tower, 148 Madison Street, 9A,INY pursuant to CPLR §5206(e)"; (2) enjoining Petitioner from transferring, disposipg, encumbering, liquidating, or enforcing any of its interests in Respondent's homesteads; (3) and directing that judgment be granted in the amount of $220,000 against Petitioner. 1 Respondent subsequently moved for an Order pursuant to CPLR §5015(a)(3) and CPLR §317 "cbmbining the herein Motion to Vacate Judgment with the Order to Show Cause ... to/ compel Petitioner to pay Respondent her homestead exemption in the amount of $110,000 and credit $70,000 towards the money judgment obtained by petitioner." In t~e alternative, Respondent seeks an Order vacating the Order on Default and judg~ent on the grounds that it was obtained by Petitioner's "misrepresentation, rraud, and misconduct, and that no notice ofthe Order on Default and judgment were erved upon the respondent and that her first notice of said order and judgment was op March 22, 2013." f I CPLR §5015(a)(3) states: I The cobrt which rendered a judgment or order may relieve a party from it uponJ such terms as may be just, on motion of any interested person with slh notice as the court may direct, upon the ground of: (3) fratjd, misrepresentation, or other misconduct of an adverse party. 1 CPLR §317 s ates, in relevant part: A pers n served with a summons other than by personal delivery to him or to hi agent for service designated under rule 318, within or without the sta e, who does not appear may be allowed to defend the action 2 [* 3] . / within ctme year after he obtains knowledge of entry of the judgment, but in no eyent more than five years after such entry, upon a finding of the court t~at he did not personally receive notice of the summons in time to defead and has a meritorious defense. If the defense is successful, the I court niay direct and enforce restitution in. the same manner and subject to the same conditions as where a judgment is reversed or modified on appeal. This section does not apply to an action for divorce, annulment or partition. 1 ! i i As noted by the Firs~ Department, CPLR §317 "is available only to a defendant who (1) was served by method other than personal delivery, (2) moves to vacate the judgment within on6 year of learning of it (but not more than five years after entry), and (3) demonstratJs a potentially meritorious defense to the action" (Caba v. Rai, I 2009 NY Slip Op ~252, *2 [1st Dept. 2009]). Importantly, CPLR §317 does not require that the defaulting party demonstrate "excusable default," as is required on a §5015(a)(l) moti1n (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., 67 N.Y.2d 138 [1986]). i Here, however, Respondent admits that she received actual notice ofthe Notice of Petition and Petijion, when she attests as follows in her affidavit: "I did not appear when Petitioner Renaissruwe . . . commenced the herein petition pursuant to CPLR 5206(e) ... because I have defaulted on my mortgages . · and I believed they were exempt properties. Photocopies of the petition by R'Fnaissance ... are attached hereto as Exhibit "A." Other than the Notice ofPet .,ti on and Petition, I did not receive any other papers regarding this matter." l The Petition upon r'hich the Order was granted, which is located at Exhibit A of Respondent's affid~vit, states, "It is respectively requested that the judgment of Renaissance be sat~sfied in whole or in part by the sale of the said real properties, subject to the Homestead exemption - if applicable." Respondent did not thereafter I appear or oppose 'etitioner's application. Having had actual knowledge of the Petition and Notice of Petition and failing to appear and oppose the Petition, there is no basis to now vac te the Court's January 23, 2012 Order pursuant to CPLR §317. 3 [* 4] I Furthermore, there ~s no evidence of any "fraud, misrepresentation, or other misconduct" on Petirner's part to warrant vacatur under CPLR §5015(a)(3). Based on the foregoing, it is hereby ! ORDERED that Respondent's motions are denied. 1 I I 1 This constitut s the decision and order of the court. All other relief requested is denied. DATED: EILEEN A. RAK.OWER, J.S.C. FILED JUN 10 2013 NEW YORK COUNTY ClERt<-S OFFICE 4 I

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