

Branch Banking & Trust Co. v Farber (2020 NY Slip Op 02118)





Branch Banking & Trust Co. v Farber


2020 NY Slip Op 02118


Decided on March 26, 2020


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 26, 2020

Friedman, J.P., Manzanet-Daniels, Gesmer, González, JJ.


11315 651295/12

[*1]Branch Banking and Trust Company, Plaintiff-Respondent,
vLeonard A. Farber, et al., Defendants-Appellants.


Arkin Solbakken LLP, New York (Robert C. Angelillo of counsel), for appellants.
Lacy Katzen LLP, Rochester (Michael J. Wegman of counsel), for respondent.

Order, Supreme Court, New York County (Shlomo Hagler, J.), entered February 13, 2019, which denied defendants' motion to vacate, pursuant to CPLR 5015(a)(3) and the court's inherent power, a judgment, same court and Justice, entered May 14, 2015, against them and in plaintiff's favor, unanimously affirmed, with costs.
The court providently exercised its discretion in finding that defendants' December 2018 motion, which was based on plaintiff's alleged fraud in its December 2013 brief, was not made within a reasonable time (see Mark v Lenfest, 80 AD3d 426 [1st Dept 2011]). It also providently exercised its discretion in denying the motion on the merits (see Nash v Port Auth. of N.Y. & N.J., 22 NY3d 220, 225 [2013]). Plaintiff did not commit "fraud, misrepresentation, or other misconduct" (CPLR 5015[a][3]) by citing New York rather than North Carolina law in its reply brief (see generally Shomron v Fuks, 147 AD3d 685, 686 [1st Dept 2017]). While it made misstatements about whether defendant Tanya Tohill-Farber signed the extension agreement, those misstatements were not material (see Torres v Torres, 171 AD3d 613 [1st Dept 2019]; Ryan v Zherka, 140 AD3d 500 [1st Dept 2016]), since the court relied on payments, not just ratification of the extension.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 26, 2020
CLERK


