Essex Cement Co., LLC v. X-Treme Ready Mix, Inc.

Essex Cement Co., LLC v X-Treme Ready Mix, Inc. 2024 NY Slip Op 31858(U) May 24, 2024 Supreme Court, New York County Docket Number: Index No. 655507/2018 Judge: Andrew Borrok Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

INDEX NO. 655507/2018 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 05/24/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 53 ----------------------------------------------------------------------------------- X

ESSEX CEMENT COMPANY, LLC, INDEX NO. 655507/2018

Plaintiff, MOTION DATE 02/13/2024 - V - MOTION SEQ. NO. 005 X-TREME READY MIX, INC.,MICHAEL FALCO

Defendant. DECISION+ ORDER ON MOTION ----------------------------------------------------------------------------------- X

HON. ANDREW BORROK:

The following e-filed documents, listed by NYSCEF document number (Motion 005) 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD

Upon the foregoing documents and for the reasons stated on the record (tr. 5.24.24), the

defendant Michael Falco (Mr. Falco)'s motion pursuant to CPLR 5015(a)(3) to vacate this

Court's Prior Decision (hereinafter defined) and the Judgment (hereinafter defined) entered

against him is denied. Simply put, among other things, Mr. Falco fails to point to any fraud,

misrepresentation, or other misconduct on behalf of the Plaintiff, fails to make any showing that

this Court relied on any such misconduct in making its Prior Decision, and because the motion is

untimely.

By Decision and Order dated March 11, 2020, this Court granted the plaintiff (Plaintiff or

Essex) summary judgment on its first, second, and fourth causes of action (the Prior Decision;

NYSCEF Doc. No. 44). Indeed, as confirmed at oral argument (tr. 3.10.20; NYSCEF Doc. No.

67), the defendant X-Treme Ready Mix, Inc. (X-Treme) conceded liability on the Plaintiff's first

and second causes of action for account stated and breach of contract, and contested only the 655507/2018 ESSEX CEMENT COMPANY, LLC vs. X-TREME READY MIX, INC. Page 1 of 5 Motion No. 005

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fourth cause of action alleging Mr. Falco' s personal liability pursuant to an alleged breach of an

Original Guaranty (hereinafter defined). Mr. Falco contested his personal liability on the bases

that (i) his signature on a certain Continuing Guaranty (the Continuing Guaranty; NYSCEF

Doc. No. 17, Exh. 3) was forged, and (ii) the Original Guaranty (the Original Guaranty;

NYSCEF Doc. No. 17, Exh. 1) was revoked by X-Treme. This Court granted summary

judgment, finding no issue of fact existed as to Mr. Falco' s personal liability because, whether or

not Mr. Falco's signature on the Continuing Guaranty was forged such that it was ineffective,

Mr. Falco was nevertheless personally liable on the Original Guaranty because the Original

Guaranty had never been terminated according to its terms and thus was still in full force and

effect and the language of the Original Guaranty is clear that Mr. Falco signed it and guaranteed

it personally (which Mr. Falco never before has disputed). This holding was unanimously

affirmed by the Appellate Division (Essex Cement Co., LLC v X-Treme Ready Mix, Inc., 193

AD3d 502 [1st Dept 2021 ])-facts which Mr. Falco appears to fail to mention in either his

moving or reply papers (NYSCEF Doc. Nos. 86, 98). Judgment was entered against Mr. Falco

on March 19, 2020 (the Judgment; NYSCEF Doc. No. 51).

Mr. Falco now moves to vacate the Prior Decision and the Judgment pursuant to CPLR

5015(a)(3), which provides that a Court may vacate a prior judgment or order upon the ground of

"fraud, misrepresentation, or other misconduct by an adverse party."

Mr. Falco' s motion fails for any number of reasons. First, and most fundamentally, Mr. Falco

simply fails to point to any fraud, misrepresentation, or misconduct by Essex or its counsel. At

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oral argument on the Plaintiffs summary judgment motion, the Court had the following

exchange with counsel to Essex concerning Mr. Falco' s liability under the Original Guaranty:

THE COURT: I'm going to look at whether or not the issue you're now raising, which is whether or not the personal guarantee in the original document, would have covered [these] future obligations. It strikes me, if it does, then why did you ask for the continuing guarantee in the first place?

MR MAGALIFF: I don't know.

(NYSCEF Doc. No. 67, at 21:3-9).

Mr. Falco alleges that Mr. Magaliff, counsel for Essex, misled the Court in replying "I don't

know," but provides no evidence whatsoever to demonstrate that Mr. Magaliff knew why X-

Treme issued the Continuing Guaranty such that Mr. Magaliff can be said to have "acted with

knowledge that [his] representations to the court were false" when made (People by James v

Vdare Found., Inc., 2024 NY Slip Op 02383 [1st Dept May 2, 2024]). Importantly, Mr. Falco

admitted on the record and in his appeal brief to the First Department that the Original Guaranty

was binding on him personally when signed, and argued against his personal liability pursuant to

the Original Guaranty only on the ground that it was later revoked by Essex (NYSCEF Doc. No.

67, at 22:5-16; Essex Cement Company, LLC v. X-Treme Ready Mix, Inc. et al., No. 2020-02424

[1st Dept 2021], NYSCEF Doc. No. 4., p. 7). This Court and the Appellate Division disagreed

with Mr. Falco's contention that the Original Guaranty had been revoked. Thus, Mr. Falco's

allegation in connection with this motion that Mr. Magaliff perpetrated a fraud on the Court in

that he should have admitted that the Original Guaranty was never binding on Mr. Falco, when

Mr. Falco himself twice conceded that it was, is belied by Mr. Falco' s own admissions. This

reason alone is sufficient to deny the motion. 655507/2018 ESSEX CEMENT COMPANY, LLC vs. X-TREME READY MIX, INC. Page 3 of 5 Motion No. 005

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Second, even were this obviously innocuous response at oral argument where Mr. Magaliff may

have forgotten that the complaint indicated as a basis for liability against Mr. Falco the

Continuing Guaranty a so-called "misrepresentation," the reason why X-Treme chose to issue

the Continuing Guaranty was irrelevant to this Court's holding in the Prior Decision. To vacate

an order or judgment pursuant to CPLR 5015(a)(3), the movant must demonstrate that the order

or judgment was obtained "through fraud, misrepresentation, or other misconduct" (Kowal v

JackFromBrooklyn Inc., 183 AD3d 407,408 [1st Dept 2020] [emphasis added]; see also DLJ

Mortg. Capital, Inc. v Kontogiannis, 128 AD3d 606, 607 [1st Dept 2015] ["[I]n any event, the

judgments were not procured by [the plaintiff's] fraud, misrepresentation, or other

misconduct."]). The basis or reason for requesting the Continuing Guaranty played no part

whatsoever in Essex obtaining the Judgment it obtained pursuant to the Prior Decision.

Finally, the motion is untimely. A motion to vacate pursuant to CPLR 5015(a)(3) must be

brought within a reasonable time (Mark v Lenfest, 80 AD3d 426,426 [1st Dept 2011]). As set

forth above, the Prior Decision and Judgment were entered in March 2020. The basis for Mr.

Falco's motion is a statement made by opposing counsel on the record on March 10, 2020 -

some over four years ago. This is not a reasonable time. Thus, putting aside the other fatal

defects, the motion must be denied on this ground as well.

In other words, at bottom, this motion is nothing more than an attempt to relitigate this Court's

Prior Decision, entered more than four years ago and unanimously affirmed by the Appellate

Division. This is not grounds for vacatur. Thus, the motion is DENIED.

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5/24/2024 DATE ANDREW BORROK, J.S.C.

~ ~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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