Shamshovich v. Shvartsman

• Decision Date: 23 October 2013
• Citation: 110 A.D.3d 975,973 N.Y.S.2d 748,2013 N.Y. Slip Op. 06847
• Parties: Rita SHAMSHOVICH, appellant, v. Yakov SHVARTSMAN, et al., defendants, Samuel Racer, respondent.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 975
973 N.Y.S.2d 748
2013 N.Y. Slip Op. 06847

Rita SHAMSHOVICH, appellant,
v.
Yakov SHVARTSMAN, et al., defendants,
Samuel Racer, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 23, 2013.

Jonathan S. Roller, Brooklyn, N.Y., for appellant.

Samuel Racer, Brooklyn, N.Y., respondent pro se.

REINALDO E. RIVERA, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.

In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiff appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated March 9, 2012, which granted the motion of the defendant Samuel Racer to vacate a judgment of the same court entered October 1, 2010, upon an order of the same court dated September 6, 2000, made upon the failure of the defendant Samuel

[973 N.Y.S.2d 749]

Racer to appear or answer the complaint, which was in favor of the plaintiff and against him in the total sum of $656,084.

ORDERED that the order dated March 9, 2012, is reversed, on the law, with costs, the motion of the defendant Samuel Racer to vacate the judgment is denied, and the judgment is reinstated.

After an inquest on September 6, 2000, the plaintiff was awarded judgment against the defendant Samuel Racer in the sum of $296,000, “with interest from the date of service of the complaint, plus costs and disbursements.” However, the plaintiff did not submit a proposed judgment for entry to the Supreme Court until October 1, 2010. In the proposed judgment, the plaintiff “waive[d] costs and disbursements.” In a notice of appeal filed on November 8, 2010, Racer appealed from the judgment; however, the appeal was thereafter dismissed by decision and order on motion of this Court dated July 29, 2011, for failure to perfect. Pursuant to an order to show cause dated January 17, 2012, Racer moved to vacate the judgment, arguing that, pursuant to 22 NYCRR 202.48, the plaintiff had abandoned the action “by failing to enter a ... judgment over a period of ten years.” The Supreme Court granted the motion without explanation.

22 NYCRR 202.48, entitled “[s]ubmission of orders, judgments and decrees for signature,” states in pertinent part:

“(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order...