Opinion
Index No. 100146/2022 Motion Seq. No. 007
01-23-2024
SHARICK IRIZARRY THARANI, Plaintiff, v. 142 EAST 49TH OWNERS CORP., Defendant.
Unpublished Opinion
MOTION DATE 10/20/2023
DECISION + ORDER ON MOTION
PAULA. GOETZ, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 007) 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 121, 123, 124, 125 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.
In this co-operative shareholder's action, plaintiffs pro se complaint includes causes of action for breach of fiduciary duty, breach of the lease, breach of the warranty of habitability, unjust enrichment, and infliction of emotional distress (NYSCEF Doc 113, pp. 4-17). By decision and order dated January 17, 2023, defendant's motion for partial summary judgment was granted to the extent that plaintiff s breach of contract claim based on allegations occurring more than six years prior to filing suit, and her breach of fiduciary duty claim based on allegations occurring more than three years prior to filing suit were dismissed as untimely (MS #5, NYSCEF Doc No 87).
Plaintiff now moves to vacate the January 17, 2023 order pursuant to CPLR § 5015(a)(3) , alleging that defendant's attorneys misrepresented the facts and issues, thereby fraudulently obtaining the judgment in its favor (NYSCEF Doc No 111). Plaintiff also seeks dismissal of defendant's affirmative defenses and counterclaims pursuant to CPLR § 3211(b). Defendant opposes the motion on procedural grounds, asserting that it was untimely filed, and on substantive grounds, arguing that plaintiff offers no evidence of fraud, misrepresentation, or misconduct, nor does she state a basis for dismissing its affirmative defenses (NYSCEF Doc No 118).
CPLR § 5015(a)(3) provides that "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on a motion . . . upon the ground of[] fraud, misrepresentation, or other misconduct of an adverse party."
Plaintiffs moving papers make numerous references to defendant's attorneys allegedly "misrepresent[ing] the facts" (see generally, NYSCEF Doc No 111 ["Defendants' attorneys' misrepresented facts to abuse the discovery process, as they twisted the truth to bury the plaintiffs case," "Hillary Fraenkel and Kenneth Amarillo misrepresented several facts to gain advantage to destroy plaintiffs case," "The Defendant attorney . . . misled the plaintiff']). However, she fails to clearly indicate what those fraudulent actions or statements were and how defendant used them to procure the order she seeks to vacate (Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 70 [2003]; Kowal v JackFromBrooklyn Inc., 183 A.D.3d 407, 408 [1st Dept 2020]; Bestin Realty, S.A. v SCI Claridge, 128 A.D.3d 503, 503 [1st Dept 2015]). For example, plaintiff states that "Ms. Hillary Ann Fraenkel states Plaintiff impermissively amended her summons and served defendants with an amended complaint that was not filed with the court" (NYSCEF Doc No 111). However, it is unclear how this statement, even if fraudulent, factored into the court's decision to grant partial summary judgment based on the statute of limitations. In other words, plaintiff fails to identify specific misrepresentations that led the court to believe the breach of contract claim and breach of fiduciary duty claim were time-barred when, in fact, they were not. Plaintiff has thus failed to demonstrate that the order issued on January 17, 2023 was procured by fraud, misrepresentation, or other misconduct by defendant or its attorneys.
The remainder of plaintiffs motion challenges the arguments made by defendant's attorneys on the motion for partial summary judgment (NYSCEF Doc No 111 ["Ms. Hillary Ann Fraenkel does not cite a law nor prove that there are not material facts," "it is the defendants' burden of proof, as the party moving for summary judgment, to demonstrate their prima facie entitlement to judgment as a matter of law"]). Though filed as a motion to vacate, this amounts to a motion to reargue, which cannot be considered at this stage; as noted by defendant, plaintiff missed her opportunity to reargue once 30 days passed from service of the notice of entry (NYSCEF Doc No 117). Therefore, plaintiffs motion will not be considered because it is untimely.
Though plaintiff contends that she "was never served by defendants' attorneys with the notice of entry" (NYSCEF Doc No 111), defendant submits proof of service by email on the same day the order was entered (NYSCEF Doc No 117). Such service conformed with the consent to e-filing form signed by the parties, which provided that their primary e-mail addresses would be used for service of documents (NYSCEF Doc No 3). Though the parties' e-mail addresses were not indicated on that form, the email dated January 17, 2023 shows that defendant's law firm emailed plaintiff at the same address she used for filing on NYSCEF.
Even if the motion could be construed solely as one to vacate, it would be rejected as untimely. A motion to vacate based on fraud, misrepresentations, or other misconduct by the opposing party must be brought "within a reasonable time" (Mark v Lenfest, 80 A.D.3d 426, 426 ). "The determination as to whether [] a motion has been made within a reasonable time is within the motion court's discretion" (Nash v Port Auth. of N.Y. & N.J, 22 N.Y.3d 220, 225 [2013]). Plaintiff filed her motion to vacate approximately nine months after the order was entered, with no explanation as to her delay (Telx, LLC v Global Broker Leasing Sys. Inc., 2023 NY Slip Op 30126[U], *3 [denying CPLR § 5015(a)(3) motion where movant offered "no excuse for why it waited nine months after learning of the [judgment] to make the motion"]). Nine months is not a "reasonable time" in which to make this application.
Additionally, because plaintiff provided no supporting argument for the dismissal of defendant's affirmative defenses, she also failed to demonstrate that the defenses were meritless as a matter of law (Granite State Ins. Co. v Transatlantic Reins. Co., 132 A.D.3d 479, 481 [1st Dept 2015] ["In moving to dismiss an affirmative defense pursuant to CPLR 3211 (b), the plaintiff bears the heavy burden of showing that the defense is without merit as a matter of law"]). Therefore, the affirmative defenses will not be dismissed.
Accordingly, it is
ORDERED that the part of plaintiff's motion seeking to vacate the January 17, 2023 order is denied; and it is further
ORDERED that the part of plaintiff's motion seeking to dismiss defendant's affirmative defenses is denied.