The following papers numbered 1 to 14 were read on this motion by defendant, FRANK GALASSO, as Trustee of the PDJ IRREVOCABLE TRUST for an order pursuant to CPLR 5015(a)(2) setting aside a default judgment entered against him as Trustee of the PDJ IRREVOCABLE TRUST on the ground of newly discovered evidence; and for an order pursuant to CPLR 3212 granting said defendant summary judgment dismissing the complaint against him:

Papers

Numbered

Order to Show Cause-Affidavits-Exhibits..............1 - 5

Affirmation in Opposition-Affidavits-Exhibits........6 - 11

Reply affirmation...................................12 - 14

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This is an action commenced by plaintiff to recover a money judgment in the amount of $1,533,777.09 for breach of a construction contract, unjust enrichment, fraud, misrepresentation [*2]and counsel fees. The complaint, which was filed on October 13, 2010, alleges that the plaintiff, AMBROSINO CONSTRUCTION CORP., is a general contractor retained by the defendants in June 2006 to perform construction and renovation on the defendants' residence located in Sands Point, New York. The parties entered into a standard written construction contract dated June 22, 2006. The contract was signed by Michael Ambrosino on behalf of the plaintiff and by defendant/homeowner Philip Galasso. Subject to additions and deductions by change order, the contract sum was set at $2,930,000.00. After performing work pursuant to the contract, the plaintiff billed defendants for labor performed and materials supplied in the sum of $2,379,002.42. It is alleged that to date the defendants have paid plaintiff a total of $1,125,000.00 and have failed or refused to pay the balance of $1,254,002.42.

Plaintiff commenced the instant action by filing a summons and complaint with the court on October 13, 2010. Defendants were personally served at their residence but failed to answer. In March 2011, the plaintiff moved this court for an order granting a default judgment against the defendants based upon their failure to answer the summons and complaint. The defendants, although duly served with the motion, failed to respond. By decision dated March 21, 2011, this Court granted a default judgment against all defendants without opposition and set the matter down for an inquest/assessment of damages. Defendants were served with notice of entry of the March 21, 2011 order as well as with a notice of inquest and certificate of readiness. The inquest was held before this Court on May 10, 2011. None of the defendants appeared. A Judgment in the amount of $1,533,777.09 was entered against all three defendants on July 18, 2011 and served on defendants with notice of entry.

On September 21, 2011, defendant Silvana Galasso brought an Order to Show cause to vacate the money judgment entered against her and filed and recorded in the Office of the Queens County Clerk on July 18, 2011. This court found that Silvana Galasso presented a reasonable excuse for the default and a meritorious defense. Said defendant's motion to vacate the default judgment pursuant to CPLR §5015(a)(1) and 5015(a)(3) was granted, and the default judgment dated March 21, 2011, the order after inquest held on May 10, 2010, and the money judgment entered July 18, 2010 were ordered to be vacated as against Silvana Galasso.Ms. Galasso thereafter served an answer with affirmative defenses dated January 27, 2012.

In July 2013, following depositions of the parties, defendant Silvana Galasso moved for an order granting summary judgment dismissing the complaint against her on the ground that the evidence in the record failed to factually support her defendant's liability for any of the alleged causes of action.

By decision and order dated July 30, 2013, this court granted the motion of Silvana Galasso for summary judgment dismissing the plaintiff's complaint against her in its entirety. After reviewing the evidence submitted including the depositions

of Ms. Galasso and Mr. Ambrosino, this Court held that the causes of action for breach of contract, fraud and unjust enrichment did not lie against Ms. Galasso as she did not sign the contract, was not involved in negotiating the terms of the project, was not involved in making any changes to the contract nor was she responsible for making payments on the contract. [*3]

Defendant Frank Galasso, as Trustee of the PDJ IRREVOCABLE TRUST now moves for an order vacating and setting aside the default Judgment entered against him as Trustee on July 18, 2011 and dismissing the action against him for the same reasons this court dismissed the action against Silvana Galasso, to wit, that he was also not a signatory to the home improvement contract with the plaintiff and was not unjustly enriched by the home improvements. Counsel argues that as this court previously found that the contract was solely between Philip Galasso and Ambrosino that like Silvana, Frank Galasso was not in privity to the party who signed the contract.

Defendant seeks to vacate the default judgment pursuant to CPLR 5015(a)(2) on the ground of newly discovered evidence, that being the decision of this Court granting Silvana's motion for summary judgment. Counsel states that there was newly discovered evidence set forth in this court's decision, namely, that it was Philip Galasso only who signed the contract with the plaintiff. In his affidavit dated September 17, 2003, Frank L. Galasso states that he was also not a party to the contract that is the basis of the instant dispute. He states that the contract was for a residential property in which he never lived nor has any ownership interest in. He states that he received no benefit from the work performed and never engaged in or conducted any negotiations for the construction services stated in the complaint. He also states that he was never served with copies of the notices of deposition or subsequent pleadings. He states that he has a meritorious defense based upon the facts considered by the Court in its prior order granting Silvana Galasso's motion for summary judgment.

Counsel also moves pursuant to CPLR 2221 for an order rearguing the prior decision of this court and upon reargument expanding its decision to include Frank Galasso and dismiss the complaint against Frank Galasso as well. Counsel asserts that the same facts that prevent claims from being asserted against Silvana also apply to him as well. Counsel states that just like Silvana, Frank Galasso did not sign a contract with plaintiff and did not benefit from the work performed.

In opposition, plaintiff's counsel, Martin Chow, Esq., states that at the time the construction contract commenced in 2006, the premises were owned by defendant Philip Galasso and Frank L. Galasso as Trustee, each having a 50% share. The construction ceased in December 2008. After the construction

ceased the property was deeded by Philip to Frank and Silvana. Therefore, counsel argues that the Trust has been a half owner of the premises prior to and during construction.

Counsel submits copies of the affidavits of service on Frank Galasso as Trustee who was served on December 18, 2010 pursuant to CPLR 308(2) by serving a person of suitable age and discretion at the actual place of business of the defendant. An additional notice was sent to the defendant pursuant to CPLR 3215(g) at his place of business on January 19, 2011. Counsel states that when the defendant failed to appear or answer the summons and complaint, the plaintiff moved for a default judgment which was granted by this court by decision and order dated March 21, 2011. A copy of the court's decision with notice of entry was served on the defendant on April 5, 2011. Plaintiff also served the defendant with a note of issue for inquest and certificate of readiness on April 5, 2011. An inquest was held before this court on May 10, [*4]2011 at which said defendant failed to appear. A judgment was entered against the defendant on July 18, 2011. Notice of entry of the judgment was served on the Trustee on July 25, 2011.

Plaintiff argues that the defendant has failed to set forth a reasonable excuse for the default, a meritorious defense or any evidence which could not have been discovered prior to the entry of the judgment. Counsel contends that the defendant has not stated that he was not properly served with or failed to receive a copy of the summons and complaint, a copy of the motion for a default judgment, a copy of the notice of inquest or a copy of the judgment which was entered more than two years prior to the service of the instant motion. With respect to the Trustee's motion to reargue or renew the prior decision pursuant to CPLR 2221, plaintiff argues that the movant has failed to demonstrate how the court overlooked or mistakenly arrived at its earlier decision.

Upon review and consideration of the defendant's order to show cause, plaintiff's affirmation in opposition and the defendant's reply thereto, this court finds that the motion of Frank L. Galasso, as Trustee, for an order vacating his default on the ground of newly discovered evidence, granting summary judgment dismissing the plaintiff's complaint against him as Trustee and for an order rearguing the prior decision and order of this court is denied.

Firstly, this court finds that the defendant has not disputed that he was properly served with the summons and complaint, the motion for a default judgment, the notice of inquest, or with notice of entry of the judgment entered on July 18, 2011, all of which were unopposed, and has not provided an reasonable excuse for the default. Further, any factual

information which was contained in this court's prior decision with regard to whether Frank Galasso signed the contract with Ambrosino or whether as a 50 per cent owner of the property he received any benefit from the improvements, is information which was within his knowledge and not newly discovered. "Only evidence which was in existence but undiscoverable with due diligence at the time of judgment may be characterized as newly discovered evidence" (see Coastal Sheet Metal Corp. v RJR Mech. Inc., 85 AD3d 420 [1st Dept. 2011][evidence only qualifies as "newly-discovered" if it was in existence at the time of the original order or judgment, but was undiscoverable with due diligence] Matter of Ayodele Ademoli J. v Elizabeth O., 57 AD3d 668 [2d Dept. 2008] Sieger v Sieger, 51 AD3d 1004 [2d Dept. 2008] Shouse v Lyons, 4 AD3d 821 [4th Dept. 2004]).

Secondly, the motion for summary judgment is premature as it was made while the defendant was in default and prior to the service of an answer (see Gaskin v Harris, 98 AD3d 941 [2d Dept. 2012][a motion for summary judgment may not be made before issue is joined (CPLR 3212 [a]) and the requirement is strictly adhered to] Shaibani v Soraya, 71 AD3d 1121 [2d Dept. 2010] Enriquez v Home Lawn Care & Landscaping, Inc., 49 AD3d 496 [2d Dept. 2008] Union Turnpike Assoc., LLC v Getty Realty Corp., 27 AD3d 725[2d Dept. 2006] Sonny Boy Realty, Inc. v City of New York, 8 AD3d 171[1st Dept. 2004)] Charter One Bank v Houston, 300 AD2d 429[2d Dept. 2002]).

Lastly, this court finds that the defendant is not a proper party to move to reargue or to modify this court's prior decision granting summary judgment to defendant Silvana Galasso as he did not submit any papers in response to her motion or move for relief at that time. Unlike this defendant, Ms. Galasso first moved to vacate the default, then submitted an answer and then appeared for a deposition prior to moving for summary judgment. The defendant herein is in [*5]default, has not provided a proper basis to vacate his default and has not submitted to a deposition. Therefore, as Frank Galasso has not participated in any of the prior proceedings, the prior decision of this court granting summary judgment to Silvana Galasso cannot be amended to dismiss the action against the Trustee.

Dated: February 6, 2014

Long Island City, N.Y

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ROBERT J. MCDONALD, J.S.C.