JULIANI v. NAHORAI (2009)

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

Bruce JULIANI, Plaintiff-Respondent, v. Sam NAHORAI doing business as International Antique Buyers, Defendant-Appellant.

Decided: February 24, 2009

GONZALEZ, J.P., SWEENY, RENWICK, FREEDMAN, JJ.

Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. Hauser & Associates PC, New York (Seth A. Hauser of counsel), for respondent.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered January 11, 2008, which granted plaintiff's motion to direct entry of judgment on a California judgment, unanimously affirmed, without costs.

Although plaintiff proceeded to enforce a foreign judgment by plenary action, authorized by CPLR 5406 as an additional option to the filing procedure in Article 54, defendant was not prejudiced by the notice of motion stating that judgment was sought pursuant to Article 54. Contrary to defendant's contention, arguments he might have made in opposition to the summary judgment motion were foreclosed by the California court orders denying vacatur of his default, retaining jurisdiction in the face of his claimed lack of service and rejecting his defenses to the action and to procurement of the judgment (see Ionescu v. Brancoveanu, 246 A.D.2d 414, 416-417, 668 N.Y.S.2d 164 [1998] ).

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