Commercial Division Blog
Vacatur Based on Releases Denied; Defendant Failed Timely to Raise Issue
On March 7, 2017, the First Department issued a decision in Grinshpun v. Borokhovich, 2017 NY Slip Op. 01662, affirming the denial of a motion for vacatur for failing timely to bring it, explaining:
Defendant failed to show, in support of vacatur pursuant to CPLR 5015(a)(2), that the agreements in which plaintiffs allegedly released him from liability could not have been previously discovered by the exercise of due diligence. Defendant has been in possession of the agreements since the inception of the litigation. While he claims that he was unable to access the agreements due to hurricane damage to his home office and marital difficulties, lack of access did not prevent him from alerting the court to their existence. Defendant claims that he did not know of the releases. However, he admits knowing that plaintiffs "promised to release him" and that, in consideration for one of the agreements, he was to be "left in peace." This knowledge should have prompted further inquiry. At the very least, defendant should have brought the November 2006 release to the court's attention when it was produced to his attorneys, one year before the instant motion was made.
(Internal citations omitted) (emphasis added).