Rubenstein v. Goldman
| Decision Date | 07 March 1996 |
| Citation | 225 A.D.2d 328,638 N.Y.S.2d 469 |
| Parties | Kenneth RUBINSTEIN, Plaintiff-Respondent, v. Donald GOLDMAN, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Kenneth Rubinstein, pro se.
J. Heisler, for defendant-appellant.
Before ELLERIN, J.P., and RUBIN, ROSS, WILLIAMS and TOM, JJ.
Order, Supreme Court, New York County (Paula Omansky, J.), entered July 17, 1995, which denied defendant's motion to vacate a New Jersey judgment, and order of the same court and Justice, entered September 15, 1995, which granted defendant's motion for reargument and renewal but adhered to the prior determination, unanimously affirmed, with costs.
Plaintiff was relieved from legal representation of defendant in a New Jersey probate proceeding, and a judgment was entered in New Jersey in the amount of $45,751.84, representing plaintiff's legal fee, after a hearing at which defendant did not appear personally, but rather opposed plaintiff's entitlement to a fee by letter. Plaintiff filed the New Jersey judgment in Supreme Court, New York County, pursuant to CPLR article 54. Defendant's argument that the New Jersey judgment was obtained by "default in appearance" (CPLR 5401) is without merit since the New Jersey court's order noted that defendant wrote "in opposition thereto." The exception in the Uniform Enforcement of Judgments Act for judgments obtained by default in appearance was designed to exclude judgments obtained by "sewer service", a circumstance clearly not present here (L & W Air Conditioning Co. v. Varsity Inn of Rochester, 82 Misc.2d 937, 938, 371 N.Y.S.2d 997, affd. 56 A.D.2d 735, 392 N.Y.S.2d 853; Paden v. Warnke, 110 Misc.2d 61, 63-64, 441 N.Y.S.2d 575; Tatick v. Tatick, 119 Misc.2d 729, 732, 464 N.Y.S.2d 337). Defendant's claims of fraud and malpractice represent collateral attacks on the New Jersey judgment, and were properly rejected, as were defendant's attempts to raise entirely new issues on reargument and to submit, without sufficient excuse, new facts on renewal. Reargument does not provide a party "an opportunity to advance arguments different from those tendered on the original application" (Foley v. Roche, 68 A.D.2d 558, 568, 418 N.Y.S.2d 588), and renewal "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Matter of Beiny, 132 A.D.2d 190, 210, 522 N.Y.S.2d 511, lv. dismissed 71 N.Y.2d 994, 529 N.Y.S.2d 277, ...
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