Kesco, Inc. v. 201 LLC (2015)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO OPEN JUDGMENT BASED UPON ACCIDENT, FRAUD OR MISTAKE

The principal issue in defendant's motion to reopen is the timeliness of the testimony of the plaintiff's expert, Albert Zabbo.   The defendant's counsel has correctly pointed out that Zabbo testified that he had last been at the defendant's property in “2010 ․ about four years ago.”   However, plaintiff's Exhibit G, Zabbo's inspection report, dated December 6, 2013, stated that on “December 3, 2013, I visited the ․ property ․” The conflicting evidence as to the date of Zabbo's last visit to the defendant's property creates a question as to the timeliness of Zabbo's last inspection.   However, the question as to the timeliness of Zabbo's visit does not effect the concerns that the court has with the credibility of the testimony of the defendant's expert, Kevin Malone.

On reevaluation of the evidence as to the timeliness of Zabbo's last inspection of the defendant's property, the court finds that the cost of repairs to the dryvit is $50,000.00 and the court awards judgment to the defendant of $50,000.00 on its counterclaim.

The court re-determines the balance of the note are as follows:

Prior to default, from April 7, 2010, to April 6, 2013, interest at the rate of 6% per annum on the balance of $27,500.00 is $4,950.00 and that, after default, from April 7, 2013, to January 6, 2015, interest at the rate of 12% per annum on the balance of $27,500.00 is $5,775.00.   Total interest is $10,725.00.   Total principal and interest is $38,225.00.   Interest will accrue on the mortgage at the rate of 12% per annum from January 7, 2015.

Seymour L. Hendel, JTR

Hendel, Seymour L., J.T.R.