FIFTH PARTNERS LLC v. LLC (2025)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about March 25, 2025, which denied the motion of defendants Joseph W. Foley and Nada Vasilijevic, pro se, to vacate the judgments entered against them in favor of plaintiff pursuant to CPLR 5015(a)(3), unanimously affirmed, without costs.

The order denying pro se defendants’ motion for vacatur of the judgments under CPLR 5015(a)(3) complied with CPLR 2219(a).  Despite its brevity, the court's order clearly stated that it was adopting the arguments made by plaintiff in its papers in opposition to the motion.  This provided defendants with sufficient detail as to the basis for denial of the motion (see Ruderman v. City of New York, 142 A.D.3d 863, 863, 37 N.Y.S.3d 543 [1st Dept. 2016], lv denied 28 N.Y.3d 913, 2017 WL 113420 [2017] [“CPLR 2219(a) provides the court with broad leeway as to the form of the order”] [internal quotation marks omitted]).

The motion court correctly declined to disturb the judgments, which this Court previously affirmed (Fifth Partners LLC v. Foley, 227 A.D.3d 543, 212 N.Y.S.3d 566 [1st Dept. 2024]).  The “new evidence” presented by defendants “does not refute the essential findings of the trial court” (Weinstock v. Handler, 251 A.D.2d 184, 184, 674 N.Y.S.2d 368 [1st Dept. 1998], lv dismissed 92 N.Y.2d 946, 681 N.Y.S.2d 476, 704 N.E.2d 229 [1998]).  The email communications concerning a purported settlement between the parties, which defendants contend were “concealed,” were included in the appendix filed in connection with the appeal from the judgments.  In any event, those emails do not reflect that the parties reached any agreement with respect to the security deposit or waiver of the requirements of the good guy guaranty.  Moreover, we reject defendants’ contention that the tenant's vacatur of the premises reflected a negotiated settlement of the parties’ dispute.

Defendants’ presentation of evidence purporting to show that plaintiff misled them about the status of exterior work on the building, which work allegedly delayed tenant's ability to open their business, has no bearing on the enforceability of the lease so as to warrant vacatur of the judgments (see Foley, 227 A.D.3d at 544, 212 N.Y.S.3d 566 [“Even aside from [provisions in the lease precluding any abatement arising from construction inconvenience, and stating that plaintiff made no representations with respect to the premises’ condition], defendant failed to allege facts sufficient to show that [plaintiff] never intended to honor its construction timeline, further warranting dismissal of the fraudulent inducement counterclaim”]).  The new evidence does not materially change that analysis, and, accordingly, further proceedings to establish the facts are unnecessary (see e.g. H & Y Realty Co. v. Baron, 193 A.D.2d 429, 430, 597 N.Y.S.2d 343 [1st Dept. 1993]).

We deny plaintiff's request for sanctions in the form of a preclusive order at this stage (see e.g. Couri v. Siebert, 48 A.D.3d 370, 371, 853 N.Y.S.2d 296 [1st Dept. 2008] [“The courts are not obliged to indulge the excesses of a pro se litigant at the expense of decorum, judicial economy and fairness to opposing parties”]).

We have considered defendants’ remaining contentions and find them unavailing.