Defino v Cassini

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Defino v Cassini 2021 NY Slip Op 30236(U) January 26, 2021 Supreme Court, New York County Docket Number: 159662/2017 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 159662/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 01/26/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART IAS MOTION 59EFM Justice -------------------------------------------------------------------------X JOSEPH DEFINO, INDEX NO. MOTION DATE Petitioner, MOTION SEQ. NO. 159662/2017 10/08/2020 003 -vDECISION + OROER ON MOTION MARIANNE NESTOR CASSINI, Respondent. --------------------------------------------------------------------------X T he following e-filed 39,40 docume~ts, listed by NYSCEF document number (Motion 003) 34, 35, 36, 37, 38, AMEND JUDGMENT were read on this motion to/for ORDER Upon the foregoing documents, it is ORDERED that to the extent that, pursuant to CPLR §§ 1018 and 1021, seeks to amend the order dated September 26, 2019 to change the name of petitioner on the caption, the motion of petitioner for leave to amend the order dated September 26, 2019, which granted judgment on the petition herein, is GRANTED; and it is further ORDERED that the caption of the herein action is amended to substitute Michael Katz, as petitioner, in place and stead of pet ioner Joseph Defino; and it is further ORDERED that to the extent that it seeks to amend the order dated September 26, 2019 to eliminate the, requirement that the net 159662/2017 DEFINO, JOSEPH vs. NESTOR CASSINI, MARIANNE Motion No. 003 1 of 6 Page 1of5 [* 2] I I I I I I I' I I INDEX NO. 159662/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 01/26/2021 sale proceeds up to the amount of the applicable exemption be paid to respondent, such motion is DENIED; and it is further ORDERED that forthwith serve a respondent, at petitioner, by overnight courier, shall copy of this order with notice of entry upon her last known address, as set Substitution of Attorney· dated January 15, 2021 forth in the (NYSCEF Document Number 44); and it is further ORDERED that petitioner shall, within thirty days of entry of the herein order, serve a copy of this order with notice of entry, upon the County Clerk ( 60 with proof of service as aforesaid, Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "EFiling" page on the court's' website at the . address· www.nycourts.gov/supctmanh). DECISION I By Assignment of Judgment dated June 13, 2019 (the Assignment), Joseph DeFino, original petitioner herein, assigned a certain judgment against respondent that was filed in the 15966212017 DEFINO, JOSEPH vs. NESTOR CASSINI, MARIANNE Motion No. 003 2 of 6 Page 2of 5 [* 3] INDEX NO. 159662/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 01/26/2021 off ice of the New York Clerk on September 12, 2014 to Michael Katz, Esq., his attorney herein (money judgment). By Ve fied Petition, dated October 20, 2017, the original petitioner herein sought to enforce such money judgment by seeking an order directing the sale of respondent's interest in the real property known as 135 East 19th Street, New York, New York (the subject real property), by the Sheriff of New York County. Respondent moved to dismiss such petition, and by . stipulation dated September 25, 2019, respondent withdrew such motion, and judgment was granted upon such petition without opposition (sale judgment). Such sale judgment decreed, in pertinent part, "ORDERED that the net proceeds from this sale, in an amount not exceeding one hundred thousand dollars ($150,000), which is the amount of the applicable homestead exemption under CPLR 5206 (e) (the Exempt Amount), be paid to respondent". Now Michael Katz, Esq. moves to be substituted as petitioner herein based upon the Assignment. As there is no bar to an assignment of a judgment before it exists (see Field v City of New York, 6 NY 179 [1852]), the moving party is entitled to the relief sought pursuant to CPLR 1018 (see also U.S. Bank National Association v Duran, 174 AD3d 768 [2d Dept. 2019]). With respect to the movant's application to amend the judgment to eliminate the homestead exemption of $150,000, as a procedural 159662/2017 DEFINO, JOSEPH vs. NESTOR CASSINI, MARIANNE Motion No. 003 3 of 6 Page 3of5 [* 4] INDEX NO. 159662/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 01/26/2021 matter, this court disagrees with pet ioner, who argues that the true nature of his application is one to renew pursuant to CPLR 2221 (e). CPLR 2221(e) light the of that is inapplicable to the matter at bar, the sale opposition from the respondent York, 123 AD3d 1083, judgment was entered with in no see Dobbyn-Blackmore v City of New [2d Dept. 2014]). Nor is petitioner's motion one to amend the judgment pursuant to CPLR 5019(a), as the proposed amendment is substantive, as opposed to representing "irregularity not affecting a substantial right of a party" an (see Johnson v Societe Generale S.A., 94 AD3d 663 [1st Dept. 2012)). Instead, the true nature of petitioner's application is one pursuant to CPLR 2221 and 5015, 5015(a) (2). Specifically, in particular pursuant to CPLR petitioner cites to photographs that were submitted by respondent in her answer to a special proceeding brought by the Public Administrator of Nassau County against her, (Public Administrator of Nassau County v Cassini, New York County Sup~eme Court, Index No. 154462/2020), which petitioner contends show that the' subject real property is unoccupied. He argues that such filings, made on September 5, 2020, constitute new evidence, wa~ unavailable at the time that this court granted the sale judgment. He contends that such photographs establish that the which subject real property is not the principal residence of respondent, and that respondent, therefore, is not entitled to the homestead exemption. 15966212017 DEFINO, JOSEPH vs. NESTOR CASSINI, MARIANNE Motion No. 003 4 of 6 Page4of6 [* 5] INDEX NO. 159662/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 01/26/2021 However, constitute the evidence now submitted by petitioner does not "newly discovered evidence, which if introduced at trial, would probably have produced a different result and which could not have been discovered in time to move a new trial under section 4404" under CPLR 5015(a) (2). Bank v JAJ Carpet Mart, Inc. As stated in Greenwich Sav. (126 AD2d 451, 453 [l 5 t Dept. 1987] J, for the purposes of obtaining relief pursuant to CPLR 5015{a) (2): "To qualify as new evidence, the evidence must have been in existence but have been undiscoverable with due diligence at the time of the original order or judgment." As the purported claim in Greenwich Sav., supra, the filings in the case brought by the public administrator existence at the time of the original judgment. were not in Therefore, there is no basis for this court to exercise its discretion pursuant to CPLR 5015 {a) (2) (see also Coastal Sheet Metal ,Corp. v RJR Mechanical Inc., 85 AD3d 420 (l 5 t Dept. 2011]). 159662/2017 DEFINO, JOSEPH vs, NESTOR CASSIN!, MARIANNE Motion No. 003 5 of 6 Page Sof 6 [* 6] INDEX NO. 159662/2017 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 01/26/2021 _Nor does CPLR 5015 (a) (3) ("fraud, misrepresentation, or other \ misconduct of the adverse party) apply, as the sale judgment was entered without opposition from respondent, and was not based on some purported misrepresentation on her part. 1/26/2021 DATE CHECK ONE: X CASE DISPOSED GRANTED D DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN 159662/2017 DEFINO, JOSEPH vs. NESTOR CASSINI, MARIANNE Motion No. 003 6 of 6 0 0 OTHER REFERENCE Page 6 of6

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