Orimex Trading, Inc. v. Berman

• Decision Date: 06 December 1990
• Citation: 168 A.D.2d 263,562 N.Y.S.2d 497
• Parties: ORIMEX TRADING, INC., Plaintiff-Respondent, v. Ben BERMAN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 497

562 N.Y.S.2d 497

168 A.D.2d 263

ORIMEX TRADING, INC., Plaintiff-Respondent, v. Ben BERMAN, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Dec. 6, 1990.

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER, ELLERIN and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Francis Pecora, J.), entered on August 21, 1989, which inter alia denied defendant's motion to vacate a default and to vacate and set aside the default judgment on the ground of newly discovered evidence, unanimously affirmed, with costs.

It is within the IAS court's discretion to determine whether or not a party has shown a reasonable excuse for a default (Thelma Sanders & Associates v. Hague Development Corp., 100 A.D.2d 964, 965, 475 N.Y.S.2d 104). Here, defendant's excuse for his default was that he was not properly served. The record supports the IAS court's conclusion to the contrary, and we find no reason to disturb that conclusion on appeal.

The motion to vacate the 1972 judgment, based on evidence that an employee of plaintiff submitted false testimony in an affidavit filed with the US District Court for the Southern District in a previous, Federal litigation that was dismissed for lack of federal jurisdiction, is also unavailing. Even if we were to find the purportedly newly discovered evidence offered by defendant relevant, defendant has not presented a reasonable explanation for the 17-year delay in bringing these matters to the attention of the court (see DiIorio v. Gibson & Cushman of New York, App.Div., 555 N.Y.S.2d 801.