Opinion
2014-07-1
Victor SPRINGER Doing Business as River Bay Woodwork, Respondent, v. AEP ENGINEERING, P.C., Defendant, and Easa Moulana Also Known as Essa Moulana, Appellant.
Present: PESCE, P.J., ALIOTTA and ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered January 16, 2013. The order denied a motion by defendant Easa Moulana to vacate a judgment insofar as entered against him.
ORDERED that the order is affirmed, without costs.
After a nonjury trial in this breach of contract action involving a construction project, a judgment awarding plaintiff the principal sum of $9,000 as against both defendants was entered on March 31, 2004. The judgment was affirmed by order of this court dated October 22, 2007 (17 Misc.3d 134[A], 2007 N.Y. Slip Op 52226[U] ).
Thereafter, in January 2013, defendant Easa Moulana moved to vacate the judgment insofar as entered against him. In his supporting affidavit, Moulana alleged that a breach of contract action involving another construction project, which action had been brought by plaintiff against the corporate defendant in the Supreme Court, New York County, had been “dismissed by proof of perjury on 11–8–05.” In opposition to the motion, plaintiff asserted that, in the other action, it had simply been determined, after a hearing, that the corporate defendant owed no money to plaintiff. Moreover, Moulana had set forth no basis for the relief requested in this motion. The Civil Court denied the motion by order entered January 16, 2013, from which Moulana appeals.
We note at the outset that, although the record indicates that a satisfaction of judgment was filed with the clerk on April 17, 2013, this does not necessarily divest the Civil Court of jurisdiction to entertain a motion to vacate the judgment ( see Tower Ins. Co. of N.Y. v. Provencio Ltd., 20 Misc.3d 132[A], 2008 N.Y. Slip Op 51456[U] [App Term, 2d & 11th Jud Dists 2008] ). Nevertheless, we find that the Civil Court properly denied Moulana's motion, as none of the arguments advanced by him were sufficient to entitle him to relief from the judgment under CPLR 5015(a).
We further note that we do not consider those assertions made by the parties or the materials annexed to their appellate briefs which are dehors the record ( see Chimarios v. Duhl, 152 A.D.2d 508 [1989] ).
Accordingly, the order is affirmed.