Fron Nahzi, etc., Plaintiff–Respondent, v. Gerald Lieblich, et al., Defendants–Appellants.

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

Fron Nahzi, etc., Plaintiff–Respondent, v. Gerald Lieblich, et al., Defendants–Appellants.

6151

Decided: November 29, 2011

Mazzarelli, J.P., Andrias, Friedman, Catterson, Freedman, JJ. Zane and Rudofsky, New York (Edward S. Rudofsky of counsel), for appellants. Roy A. McKenzie, New York, for respondent.

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Order, Supreme Court, New York County (Paul G. Feinman, J.), entered December 15, 2010, which, to the extent appealed from, denied defendants' motion to vacate a judgment entered January 27, 2009 in favor of plaintiff, unanimously affirmed, with costs.

In a prior appeal in this action, we affirmed the January 27, 2009 judgment upon finding that plaintiff established that he was entitled to recover a share of the proceeds realized on the sale of the corporation's real property.   Plaintiff presented documentary evidence of his 25% interest in the corporation.   Defendants failed to produce any documentary evidence that plaintiff's interest in the corporation had been transferred or that they purchased a cooperative apartment for him in consideration of his interest in the corporation (69 AD3d 427 [2010], lv denied 15 NY3d 703 [2010] ).

Defendants now seek to vacate the judgment on the ground that plaintiff's deposition testimony in a subsequent action renders his version of events in this action false and misleading (see CPLR 5015[a][3] ).   Defendants brought the subsequent action against plaintiff to recover the purchase price of the apartment.   In his deposition testimony in that action, plaintiff explained the events leading to the purchase of the apartment more fully than in his affidavit in support of summary judgment in this action.   However, the additional facts to which he testified do not support defendants' contention that they purchased the apartment in consideration of plaintiff's interest in the corporation.   Nor do the affidavits defendants submitted in support of this contention raise an issue of fact.   One offers no support, and the other is based on inadmissible hearsay.

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK