Ruth Kendall v. David M. Somers et al. (2012)

MEMORANDUM OF DECISION ON MOTION TO OPEN AND SET ASIDE JUDGMENT

In February of this year, the court held hearings on plaintiff's Motion to Open and Set Aside the Judgment, which alleged that the judgment rendered by the court in February of 2011, presently on appeal, was procured by deliberately false testimony.   By way of background, defendant, in November of 2011, had filed a motion to terminate the automatic stay by releasing the Lis Pendens encumbering the properties claimed in the action on appeal to have been fraudulently conveyed by defendant David Somers to defendant Geraldine Seguin.   At the hearing on the Motion to Terminate Stay, the third defendant, Beverly Somers, filed a pro se appearance at the hearing and made several serious allegations as to the truth of her and her husband's testimony at the trial.   These allegations were unsworn.   The court proceeded to hear all parties and denied the defendant's Motion to terminate the Stay.

Not long after that, plaintiff filed her Motion to Open and Set Aside, which the court now decides.

The evidence presented was essentially the testimony of Beverly Somers, who testified that although living with the defendant at time of trial they were “separated,” at that time, and that now she had brought a dissolution of marriage action against David Somers.   She further testified that Mr. Somers and Ms. Seguin were living together in one of the units that were the subject of the fraudulent transfer claim, and that much of Mrs. Somers' testimony had been false, she having testified to what Mr. Somers told her to say.   She further recounted statements of Mr. Somers to the effect that the stated consideration paid by Ms. Seguin was not really being paid, the checks paid by Ms. Seguin to Mrs. Somers (taken by Mr. Somers) were being returned to Ms. Seguin, and numerous other specific lies surrounding the time of Mr. Somer's receipt of notice of the decision by Freed, J. in favor of Ms. Kendall.   Neither Mr. Somers nor Ms. Seguin offered evidence, after the court set another date for that opportunity.

Given that the court accepts Mrs. Somers testimony at the hearing, the court finds that this testimony, had it been presented at the original trial at which plaintiff failed to prevail, would have most certainly resulted in a different result, all other things being equal.   Therefore, the court grants the Motion to Open and Set Aside the Judgment entered by this court in February of 2011.

Koletsky, JTR

Koletsky, Joseph Q., J.T.R.