Skydell v. Gelb

• Decision Date: 21 November 1991
• Citation: 177 A.D.2d 437,576 N.Y.S.2d 281
• Parties: Harry SKYDELL and Deptford Mall Corp., Plaintiffs-Appellants, v. Thomas GELB and Robert Wisgo, Defendants-Respondents. Albert SCHWARTZ, Plaintiff-Respondent, v. Harry SKYDELL and Deptford Mall Corp., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 281

576 N.Y.S.2d 281

177 A.D.2d 437

Harry SKYDELL and Deptford Mall Corp., Plaintiffs-Appellants, v. Thomas GELB and Robert Wisgo, Defendants-Respondents.

Albert SCHWARTZ, Plaintiff-Respondent, v. Harry SKYDELL and Deptford Mall Corp., Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

Nov. 21, 1991.

Before WALLACH, J.P., and KUPFERMAN, ROSS and SMITH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (William Davis, J.), entered December 27, 1990, which denied the motion of Harry Skydell ("Skydell") and Deptford Mall Corp. ("Deptford") to vacate Judgments by Confession, and the judgment of the same Court, entered August 7, 1991, which, inter alia, granted Thomas Gelb's ("Gelb") and Robert Wisgo's ("Wisgo") motion for summary judgment pursuant to CPLR 3212 dismissing the complaint, unanimously affirmed, with one bill of $250 costs and disbursements of these appeals.

Albert Schwartz loaned Deptford a sum of money in June 1989. In return, Skydell (Deptford's president) executed both a promissory note on behalf of Deptford and his own personal guaranty. After Deptford defaulted on the note, a modification agreement was executed which extended the loan to February 28, 1990 and which required Deptford and Skydell to execute "Warrants of Attorney to Confess Judgment." Deptford again defaulted and thereafter Schwartz instituted a CPLR Article 78 application to direct the County Clerk to accept the warrants for filing. However, when Skydell and his attorney offered a new collateral package with Skydell executing new affidavits of confession for himself personally and on behalf of Deptford, Schwartz agreed to withdraw his application. The affidavits were notarized by Robert Wisgo. Skydell signed the affidavits but was in a hurry and left Wisgo's presence immediately before the formal notarization.

Skydell breached his promises once more and Judgments by Confession were filed on August 22, 1990. Skydell and Deptford moved to vacate the judgments based on, inter alia, fraud and misconduct of Gelb, Schwartz's business representative, and Wisgo.

Meanwhile, Skydell and Deptford started an action against Gelb and Wisgo for damages due to Gelb's alleged violation of New York Judiciary Law § 487 and upon Wisgo's alleged violation of New York Executive Law § 135. Both accusations concerned the same facts alleged in the motion to vacate, which was denied in December 1990. Gelb and Wisgo then moved for summary judgment arguing that the December 1990 order collaterally estopped Skydell and Deptford from relitigating the same issues. The IAS Court granted...