LLC v. Micheline Bienish, appellant.

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

The Regency Club at Wallkill, LLC, respondent, v. Micheline Bienish, appellant.

2010–00781 (Index No. 09/3556)

-- May 01, 2012

PETER B. SKELOS, J.P. MARK C. DILLON RANDALL T. ENG LEONARD B. AUSTIN, JJ. Douglas R. Dollinger, Goshen, N.Y., for appellant. Jacobowitz & Gubits, LLP, Walden, N.Y. (Gerald N. Jacobowitz of counsel), for respondent.

Argued—March 13, 2012

DECISION & ORDER

In an action to enforce a judgment by confession, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Orange County (Ritter, J.), dated November 20, 2009, as, without a hearing, denied that branch of her motion which was to vacate the judgment by confession.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Generally, a person seeking to vacate a judgment entered upon the filing of an affidavit of confession of judgment must commence a separate plenary action for that relief (see Posner v. Posner, 277 A.D.2d 298;  Rubino v. Csikortos, 258 A.D.2d 638;  Centurion Taxi v. Beizem, 247 A.D.2d 502;  L.R. Dean, Inc. v International Energy Resources, 213 A.D.2d 455;  cf.  McDonough v Bonnie Heights Realty Corp., 249 A.D.2d 520;  Cooper, Selvin & Strassberg v. Soda Dispensing Sys., 212 A.D.2d 498).   Under the circumstances here, the defendant's contentions that the judgment by confession must be vacated on the grounds of fraud and breach of contract must be resolved in a plenary action.

Additionally, the statutory requirement that an affidavit of confession of judgment “[state] concisely the facts out of which the debt arose and [show] that the sum confessed is justly due” (CPLR 3218[a][2] ) “ ‘is designed for the protection of third persons who might be prejudiced in the event that a collusively confessed judgment is entered, and not for the protection of the defendant’ ” (Burtner v. Burtner, 144 A.D.2d 417, 418, quoting Mall Commercial Corp. v. Chrisa Rest., 85 Misc.2d 613, 614).   Therefore, the defendant may not challenge the judgment by confession on the ground that the specificity requirements of CPLR 3218(a)(2) were not satisfied (see Burtner v. Burtner, 144 A.D.2d at 418).   In any event, the record reflects that the affidavit was sufficiently particular so as to enable any interested third parties to investigate the claim and ascertain its validity (see Wood v. Mitchell, 117 N.Y. 439, 441–442;  Eurofactors Intl, Inc. v. Jacobowitz, 21 AD3d 443, 445;  cf.  County Natl. Bank v. Vogt, 28 A.D.2d 793, affd 21 N.Y.2d 800).

Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was to vacate the judgment by confession.

SKELOS, J.P., DILLON, ENG and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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