He v. Siemens Energy, Inc. , 24 N.Y.S.3d 224 ( 2015 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: December 17, 2015                   519823
    ________________________________
    SHIRLEY HE,
    Appellant,
    v                                      MEMORANDUM AND ORDER
    SIEMENS ENERGY, INC., et al.,
    Respondents.
    ________________________________
    Calendar Date:   October 16, 2015
    Before:   McCarthy, J.P., Egan Jr., Rose and Devine, JJ.
    __________
    Shirley He, Clifton Park, appellant pro se.
    Littleton Joyce Ughetta Park & Kelly, LLP, Purchase (Bryon
    L. Friedman of counsel), for Siemens Energy, Inc. and others,
    respondents.
    The Dalton Law Firm, LLC, Saratoga Springs (Alisa M. Dalton
    of counsel), for Ricardo R. Austria and another, respondents.
    __________
    Devine, J.
    Appeal from an order of the Supreme Court (Clark, J.),
    entered December 20, 2013 in Schenectady County, which, among
    other things, denied plaintiff's motion to vacate a prior order
    of the court.
    Plaintiff has regularly appeared before this Court on
    matters connected, be it directly or indirectly, to her 2005
    divorce (Xiaoling Shirley He v Xiaokang Xu, 130 AD3d 1386 [2015],
    lv denied 26 NY3d 904 [2015]; Xiaoling Shirley He v Xiaokang Xu,
    126 AD3d 1052 [2015]; He v Realty USA, 121 AD3d 1336 [2014], lv
    dismissed and denied 25 NY3d 1018 [2015]; Xiaokang Xu v Xiaoling
    -2-                519823
    Shirley He, 77 AD3d 1083 [2010]; Xiaokang Xu v Xiaoling Shirley
    He, 24 AD3d 862 [2005], lv denied 6 NY3d 710 [2006]). Plaintiff
    commenced this action in 2012 against the former employer of her
    ex-husband, defendant Siemens Energy, Inc., as well as several of
    his former coworkers. The gravamen of the complaint is that
    defendants interfered in various ways with plaintiff's marriage,
    harassed her and either perjured themselves at her divorce trial
    or facilitated such perjury.
    Siemens and defendants Brian Gemmell, Clyde Custer, James
    W. Feltes and Yachi Lin (hereinafter collectively referred to as
    the Siemens defendants) filed a pre-answer motion to dismiss the
    complaint and argued, among other things, that it was time-
    barred. Defendants Ricardo R. Austria and Ramon Tapia filed a
    separate pre-answer motion to dismiss, alleging that personal
    jurisdiction had not been obtained over them and that the
    complaint failed to state a cause of action. At plaintiff's
    request, Supreme Court (Drago, J.) extended the time in which she
    could serve responsive papers to May 12, 2012, but made clear
    that "[n]o further adjournments will be accepted." Supreme Court
    did not respond to subsequent requests by plaintiff for an
    extension and, in August 2012, granted both motions upon the
    basis that all of the claims contained in the complaint were
    time-barred. Plaintiff's appeal from the August 2012 order was
    dismissed (2012 NY Slip Op 92933[U]), prompting her to move to
    vacate the order in July 2013. Supreme Court (Clark, J.) denied
    the motion, and plaintiff now appeals from this order.
    We affirm. Despite having been granted an extension of
    time in which to serve responsive papers and being advised that
    no further extensions would be granted, plaintiff submitted
    nothing aside from requests for further adjournments. Contrary
    to the argument of the Siemens defendants, Supreme Court properly
    treated the August 2012 order as one entered upon default under
    these circumstances (see CPLR 2214 [c]; Hartwich v Young, 149
    AD2d 762, 765 [1989], lv denied 75 NY2d 701 [1989]).
    Nonetheless, in order "to be relieved of a judgment [or order] on
    the ground of 'excusable default' . . . [a party] must establish
    that there was a reasonable excuse for the default and a
    meritorious claim or defense" (Pekarek v Votaw, 216 AD2d 829, 830
    [1995], quoting CPLR 5015 [a] [1]; see Doane v Kiwanis Club of
    -3-                  519823
    Rotterdam, N.Y., Inc., 128 AD3d 1309, 1310 [2015]). Assuming,
    without deciding, that plaintiff established a reasonable excuse
    for her default (but see Jaffery v MacMillan & Webb Enters.,
    Inc., 27 AD3d 422, 422-423 [2006]), she did not go on to
    establish the existence of a meritorious claim.
    Plaintiff here sought to recover for various intentional
    torts allegedly committed by defendants between 2002 and 2004.
    This action was commenced in 2012 and, because most of the causes
    of action asserted in the complaint are subject to a statute of
    limitations of one year (see CPLR 215 [3]) or three years
    (see CPLR 214 [4], [5]), they are time-barred. Plaintiff makes
    no effort to chart a potential path to overcoming the statute of
    limitations problem with regard to those causes of action; she
    does, however, argue that certain fraud claims interposed in the
    complaint remain viable. The complaint specifically alleged that
    certain defendants committed perjury or suborned perjury in the
    divorce action, and plaintiff contends that those claims are not
    time-barred because she only recently became aware of defendants'
    lies (see CPLR 213 [8]). It has been long established "that
    there can be no civil action for perjury or subornation of
    perjury," however, and whatever redress is available to plaintiff
    does not include the present action (Verplanck v Van Buren, 76 NY
    247, 261 [1879]; see Specialized Indus. Servs. Corp. v Carter, 68
    AD3d 750, 751-752 [2009]). Thus, because plaintiff failed to
    come forward with proof of a meritorious claim, Supreme Court did
    not abuse its discretion in denying her motion to vacate the
    order entered upon her default (see F & K Supply, Inc. v Shean,
    56 AD3d 1076, 1078 [2008]).
    McCarthy, J.P., Egan Jr. and Rose, JJ., concur.
    ORDERED that the order is affirmed, without costs.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 519823

Citation Numbers: 134 A.D.3d 1310, 24 N.Y.S.3d 224

Filed Date: 12/17/2015

Precedential Status: Precedential

Modified Date: 1/12/2023