Anchor Sav. Bank v. Parker, 2006 NY Slip Op 50071(U) (NY 1/20/2006), 13164/05.
| Decision Date | 20 January 2006 |
| Docket Number | 13164/05. |
| Citation | 2006 NY Slip Op 50071(U) |
| Parties | ANCHOR SAVINGS BANK, Plaintiff(s), v. ALFRED PARKER, Defendant(s). |
| Court | New York Court of Appeals Court of Appeals |
Kirschenbaum & Phillips, P.C., Attn: Steven L. Rosenthal, Esq., Mineola, NY, Attorneys for Plaintiff.
Alfred Parker, Hicksville, NY, Defendant, Pro Se.
Motion by plaintiff Anchor Savings Bank for an order pursuant to CPLR 3212 awarding it summary judgment against defendant renewing the lien of judgment stemming from Anchor Savings Bank FSB v. Alfred Parker, index # 31324/92 (the underlying action) in accordance with CPLR 5014 is granted.
Cross-motion by defendant for an order pursuant to CPLR 5015(2) and (3) vacating the default judgment entered August 4, 1993 in the underlying action is denied.
On or about July 26, 2003, plaintiff was awarded a judgment against defendant in the underlying action in the total amount of $17,123.05 which was thereafter docketed in the Office of the Nassau County Clerk on August 4, 1993. The judgment remains unsatisfied, although the sum of $335.00 was paid by defendant apparently to satisfy a fine imposed by order of the Hon. Marvin E. Segal entered August 9, 2001, who found defendant in contempt for failing to comply with a subpoena to testify under oath in enforcement proceedings in the underlying action.
Plaintiff commenced this action in or about October, 2005 to obtain a new judgment for the outstanding balance now due in the amount of $35,767.00.
Pursuant to CPLR 5014(1), an action upon a money judgment may be maintained between the original parties where ten years has elapsed since the judgment was originally docketed (Pangburn v. Klug, 244 AD2d 394, 395 [2nd Dept. 1997]). As held in First National Bank of Long Island v. Brooks, (1 Misc 3d 905(A) [Sup. Ct., Nassau Co., Gartner, J.]) a judgment creditor is able to obtain a new twenty-year judgment, and new ten-year lien on real property, through an action against the debtor to renew the judgment even if the creditor's lien had lapsed because he waited longer than the minimum ten-year period for renewing the lien.
In response to plaintiff's motion papers, defendant has failed to offer any legally cognizable basis to deny the requested relief. His cross-motion to vacate the judgment herein pursuant to CPLR 5015(2) and/or CPLR 5015(3) is unpersuasive. Neither the affidavit of Mr. Michael Dorrough nor anything stated therein constitutes newly discovered evidence, i.e., evidence that is material as to the merits of the case, which could not, despite due diligence, have been discovered in time to more for a new trial, and would, in all probability, produce a different result if a new trial is had (S.A.B. Enterprises Inc. v. Stewart's Ice Cream Co., Inc., 242 AD2d 845 [3rd Dept. 1997], leave to appeal dismissed 91 NY2d 848 [1997]). Rather, the affiant states only that defendant, after discovering the existence of a default judgment, allegedly through internet research, ...
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