GAMBARIAN v. SPIVAKOV (2025)

DECISION & ORDER

In an action to vacate a judgment by confession, the defendant appeals from an order of the Supreme Court, Richmond County (Lizette Colon, J.), dated February 20, 2024.  The order, insofar as appealed from, denied that branch of the defendant's motion which was for summary judgment dismissing the complaint.

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

In December 2022, the plaintiffs commenced this action to vacate a judgment by confession filed by the defendant in July 2019.  The judgment by confession was supported by an affidavit of confession of judgment allegedly executed on July 26, 2019, by Armen Gambarian in favor of the defendant.  The plaintiffs alleged, among other things, that the defendant committed fraud in obtaining the affidavit.  Thereafter, the defendant moved, inter alia, for summary judgment dismissing the complaint.  In an order dated February 20, 2024, the Supreme Court, among other things, denied that branch of the defendant's motion.  The defendant appeals.

In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party (see Campos v. Colon, 227 A.D.3d 857, 858, 210 N.Y.S.3d 293;  Khutoryanskaya v. Laser & Microsurgery, P.C., 222 A.D.3d 633, 635, 201 N.Y.S.3d 177).  Such a motion “should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” (Gutkina v. Max Media & Art, LLC, 227 A.D.3d 961, 962, 212 N.Y.S.3d 184 [internal quotation marks omitted];  see Khutoryanskaya v. Laser & Microsurgery, P.C., 222 A.D.3d at 635, 201 N.Y.S.3d 177).  Here, viewing the evidence in the light most favorable to the plaintiffs, the defendant's submissions contained conflicting evidence regarding material facts and raised issues of credibility and, therefore, failed to establish, prima facie, the defendant's entitlement to judgment as a matter of law dismissing the complaint (see Parker Waichman, LLP v. Getreu, 170 A.D.3d 874, 875, 96 N.Y.S.3d 115;  see generally Gutkina v. Max Media & Art, LLC, 227 A.D.3d at 963, 212 N.Y.S.3d 184;  Schmitz v. Pinto, 220 A.D.3d 681, 682, 197 N.Y.S.3d 326).

Accordingly, since the defendant failed to establish his prima facie entitlement to judgment as a matter of law, the Supreme Court properly denied that branch of his motion which was for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiffs’ opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The defendant's remaining contention is without merit.

DILLON, J.P., WOOTEN, VENTURA and GOLIA, JJ., concur.