ATN Elec. Corp. v Fink (2009 NY Slip Op 52443(U))

ATN Elec. Corp. v Fink

2009 NY Slip Op 52443(U) [25 Misc 3d 140(A)]

Decided on December 1, 2009

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

ATN Electric Corporation, Respondent,

against

Stewart Fink, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered August 9, 2007. The order, insofar as appealed from as limited by the brief, denied defendant's cross motion to vacate the judgment.

On June 10, 1996, plaintiff commenced the instant action to recover monies owed for unpaid electrical services rendered. After trial, the Civil Court found in favor of plaintiff, and a judgment was entered on December 16, 1998. Thereafter, defendant moved to vacate the judgment and plaintiff cross-moved for an order compelling defendant to appear for an examination pursuant to a subpoena duces tecum. By order dated October 4, 1999, the court denied defendant's motion and granted plaintiff's cross motion. Defendant moved for leave to reargue, and, by order dated February 9, 2001, the court granted leave, and, upon reargument, adhered to its October 4, 1999 order. Defendant appealed, and, by order dated May 20, 2002, this court unanimously affirmed the February 9, 2001 order. Thereafter, plaintiff moved to compel defendant to respond to the information subpoena previously served upon him and to appear for a deposition within 30 days after production of the information set forth in the information subpoena. Defendant cross-moved to vacate the judgment. By order entered August 9, 2007, the Civil Court granted plaintiff's motion to the extent of directing defendant to respond to the information subpoena and denied defendant's cross motion to vacate the judgment. Defendant now appeals, as limited by his brief, from so much of the order as denied his cross motion.

Defendant did not raise his current contention, that the judgment should be vacated because the clerk had no authority to enter it, in his initial motion to vacate the judgment or on his prior appeal to this court from the order which, upon reargument, denied his motion to vacate [*2]the judgment. Since defendant failed to raise his current contention on his prior appeal, he waived said contention (see Goldstein v Held, 63 AD3d 881 [2009]; Dankner v Steefel, 47 AD3d 867 [2008]; Matter of Gerzof v Coons, 177 AD2d 487 [1991]). Accordingly, the order, insofar as appealed from, is affirmed.