Chase Bank USA, N.A. v. Laroche
| Citation | 208 A.D.3d 845,174 N.Y.S.3d 738 |
| Decision Date | 31 August 2022 |
| Docket Number | 2020–08271,Index No. 19458/06 |
| Parties | CHASE BANK USA, N.A., respondent, v. Rachel LAROCHE, appellant. |
| Court | New York Supreme Court Appellate Division |
208 A.D.3d 845
174 N.Y.S.3d 738
CHASE BANK USA, N.A., respondent,
v.
Rachel LAROCHE, appellant.
2020–08271
Index No. 19458/06
Supreme Court, Appellate Division, Second Department, New York.
Submitted—May 10, 2022
August 31, 2022
Rachel Laroche, Westbury, NY, appellant pro se.
Maidenbaum & Associates, PLLC, Merrick, NY (Eric J. Canals of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action to recover damages for breach of contract and on an account stated, the defendant appeals from an order of the Supreme Court, Nassau County (Jeffrey S. Brown, J.), entered September 29, 2020. The order denied the defendant's motion, in effect, pursuant to CPLR 5015(a)(2) and (3) to vacate a clerk's judgment entered May 3, 2007, in favor of the plaintiff and against the defendant in the total sum of $21,993.43.
ORDERED that the order is affirmed, with costs.
In November 2006, the plaintiff commenced this action against the defendant to recover damages for breach of contract and on an account stated, alleging that the defendant failed to pay certain sums due on her credit card account. The defendant failed to appear or answer the complaint. On May 3, 2007, a clerk's judgment was entered in favor of the plaintiff and against the defendant in the total sum of $21,993.43.
In July 2020, the defendant moved, in effect, pursuant to CPLR 5015(a)(2) and (3) to vacate the clerk's judgment. In an order entered September 29, 2020, the Supreme Court denied the motion, and the defendant appeals.
"Newly discovered evidence is evidence which was in existence but undiscoverable with due diligence at the time of the original order or judgment" ( Nationstar Mtge., LLC v. Paganini, 191 A.D.3d 790, 793, 142 N.Y.S.3d 548 ; see Abakporo v. Abakporo, 202 A.D.3d 646, 649, 163 N.Y.S.3d 137 ; Branch Banking & Trust Co. v. Jacobson, 194 A.D.3d 685, 686, 143 N.Y.S.3d 596 ). "In order to succeed on a motion pursuant to CPLR 5015(a)(2) to vacate an order or judgment on the ground of newly discovered evidence, the movant must establish that the evidence could not have been discovered earlier through the exercise of due diligence and that the newly discovered evidence would probably have produced a different result" ( Borrie v. County of Suffolk, 197 A.D.3d 1285, 1286, 152 N.Y.S.3d 321 ; see Anghel v. Ruskin Moscou Faltischek, P.C., 190 A.D.3d 903, 905, 141 N.Y.S.3d 95 ; Wall St. Mtge. Bankers, Ltd. v....
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