Motion-Secondary: Alexander Komolov, Alskom Realty Llc, High Value Trading Llc v. David Segal, David Segal Antiques Llc, Mohamed Serry, Artique International Ltd, Artique Multinational Llc, Pacific Platinum Llc, Segal & Segal Holding Llc

On November 17, 2010 a Motion-Secondary was filed involving a dispute between Alexander Komolov, Alskom Realty Llc, High Value Trading Llc, and Artique International Ltd, Artique Multinational Llc, David Segal, David Segal Antiques Llc, Mohamed Serry, Pacific Platinum Llc, Segal & Segal Holding Llc, for Commercial Division in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 12/12/2016 06:47 PM INDEX NO. 652042/2010
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/12/2016

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------X
ALEXANDER KOMOLOV, ALSKOM :
REALTY LLC, and HIGH VALUE :
TRADING, LLC, : Index No. 652042/2010
:
Plaintiffs, : Mtn. Seq. No. 002
v. :
:
DAVID SEGAL, DAVID SEGAL :
ANTIQUES LLC, MOHAMED SERRY, :
ARTIQUE INTERNATIONAL LTD., :
ARTIQUE MULTINATIONAL LLC, :
PACIFIC PLATINUM, LLC and SEGAL & :
SEGAL HOLDING, LLC, :
:
Defendants. :
---------------------------------------------------------X

MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’
MOTION FOR LEAVE TO RENEW OR FOR RELIEF FROM JUDGMENT

FRANKFURT KURNIT KLEIN & SELZ, P.C.
Brian E. Maas, Esq.
Jeremy S. Goldman, Esq.
Caren Decter, Esq.
Nicole Bergstrom, Esq.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel.: (212) 980-0120
Fax: (212) 593-9175
bmaas@fkks.com
jgoldman@fkks.com
cdecter@fkks.com
nbergstrom@fkks.com

Attorneys for Defendants David Segal, David Segal
Antiques LLC, Mohamed Serry, Artique
International Ltd., Artique Multinational LLC,
Pacific Platinum, LLC and Segal & Segal Holding,
LLC

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .................................................................................................... 1

RELEVANT FACTS AND PROCEDURAL HISTORY .............................................................. 3

The First Action .................................................................................................................. 3

Discovery of the Written Contract of Sale .......................................................................... 4

The Second Action .............................................................................................................. 4

ARGUMENT .................................................................................................................................. 7

I. KOMOLOV’S MOTION FOR LEAVE TO RENEW FAILS BECAUSE RELIEF
UNDER CPLR 2221(e) IS UNAVAILABLE ONCE A FINAL JUDGMENT
HAS BEEN ENTERED AND KOMOLOV CANNOT PROVIDE A
REASONABLE JUSTIFICATION FOR FAILING TO PRESENT THE
CONTRACT OF SALE ON THE ORIGINAL MOTION ................................................. 7

A. Renewal Under CPLR 2221(e) is Unavailable Because Judgment Has
Been Entered ........................................................................................................... 7

B. With Due Diligence Komolov Could Have Presented the Contract on
the Motion ............................................................................................................... 8

II. KOMOLOV’S MOTION TO VACATE THE JUDGMENT UNDER CPLR
5015(A)(2) SHOULD BE DENIED, BECAUSE THE CONTRACT, WHICH
KOMOLOV OBTAINED MORE THAN 5 ½ YEARS AGO, IS NOT “NEWLY-
DISCOVERED EVIDENCE” .......................................................................................... 10

CONCLUSION ............................................................................................................................. 14

2 of 19
TABLE OF AUTHORITIES

Page(s)

Cases

Angela P. v Floyd S.,
103 A.D.3d 439 (1st Dep’t 2013) ............................................................................................12

Begler v. Saltzman,
53 A.D.2d 578 (1st Dep’t 1976) ................................................................................................8

City of Albany Indus. Dev. Agency v. Garg,
250 A.D.2d 991 (3d Dep’t 1998) .............................................................................................12

Curry v. Vertex Restoration Corp.,
252 A.D.2d 360 (1st Dep’t 1998) ..............................................................................................7

D’Anthony v. Lender,
262 A.D.2d 247 (1st Dep’t 1999) ......................................................................................10, 11

Federated Conservationists of Westchester v. Cty. of Westchester,
4 A.D.3d 326 (1st Dep’t 2004) ................................................................................................11

Framapac Delicatessen, Inc. v. Aetna Cas. & Sur. Co.,
249 A.D.2d 36 (1st Dep’t1998) .................................................................................................8

Franco Belli Plumbing & Heating & Sons, Inc. v. N.Y. City Sch. Const. Auth.,
142 A.D.3d 1011 (2d Dep’t 2016) .............................................................................................7

Greenwich Sav. Bank v. JAJ Carpet Mart, Inc.,
126 A.D.2d 451 (1st Dep’t 1987) ............................................................................................13

H&Y Realty Co. v. Baron,
193 A.D.2d 429 (1st Dep’t 1993) ............................................................................................10

Hawkins v. William F. Regan, Inc.,
39 A.D.2d 908 (2d Dep’t 1972) ...............................................................................................10

In re Chatham Towers, Inc.,
39 A.D.3d 308 (1st Dep’t 2007) ..............................................................................................11

Kassis Mgmt., Inc. v. Milstein,
198 A.D.2d 51 (1st Dep’t 1993) ..............................................................................................11

Kleet Lumber Co., Inc. v. Saw Horse Remodelers, Inc.,
13 A.D.3d 414 (2d Dep’t 2004) ...............................................................................................12

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Komolov v. Segal,
No. 651626/2011, 2015 WL 3989028 (Sup. Ct. N.Y. Cty. July 1, 2015) .................................3

Laurenzano v. Laurenzano,
208 A.D.2d 808 (2d Dep’t 1994) .......................................................................................10, 11

Long Is. Light. Co. v Century Indem. Co.,
52 A.D.3d 383 (1st Dep’t 2008) ..............................................................................................12

Maddux v. Schur,
53 A.D.3d 738 (3d Dep’t 2008) .................................................................................................7

McCarthy v. Port of N.Y. Auth.,
21 A.D.2d 125 (1st Dep’t 1964) ..............................................................................................11

McGovern v. Getz,
193 A.D.2d 655 (2d Dep’t 1993) .......................................................................................10, 11

Molina v. Chladek,
140 A.D.3d 523 (1st Dep’t 2016) ............................................................................................12

Nahzi v. Lieblich,
29 Misc. 3d 1238(A), 958 N.Y.S.2d 647 (Sup. Ct. N.Y. Cty. 2010) .......................................11

Nash v. Port Auth. of N.Y. and N.J.,
131 A.D.3d 164 (1st Dep’t 2015) ............................................................................................10

Orchard Hotel, LLC v. D.A.B. Grp., LLC,
114 A.D.3d 508 (1st Dep’t 2014) ..............................................................................................9

Orix Credit All., Inc. v. Grace Indus., Inc.,
274 A.D.2d 424 (2d Dep’t 2000) .............................................................................................10

Priant v. N.Y. City Transit Auth.,
142 A.D.3d 491 (2d Dep’t 2016) ...............................................................................................9

Prote Contracting Co. v. Bd. of Educ. of the City of N.Y.,
230 A.D.2d 32 (1st Dep’t 1997) ..............................................................................................11

Ralat v. N.Y. City Hous. Auth.,
265 A.D.2d 185 (1st Dep’t 1999) ..............................................................................................8

Reed v. Cty. of Westchester,
243 A.D.2d 714 (2d Dep’t 1997) ...............................................................................................7

Schoenholz v. N.Y. Life Ins. Co.,
234 N.Y. 24 (1922) ..................................................................................................................13

iii

4 of 19
Segall v. Heyer,
161 A.D.2d 471 (1st Dep’t1990) ...............................................................................................8

Sieger v. Sieger,
51 A.D.3d 1004 (2d Dep’t 2008) .............................................................................................12

Swope v. Quadra Realty Trust, Inc.,
28 Misc. 3d 1209(A), 957 N.Y.S.2d 639 (Sup. Ct. N.Y. Cty. 2010) .........................................7

Taub v. Art Students League of N.Y.,
63 A.D.3d 630 (1st Dep’t 2009) ................................................................................................8

Willard v. Town Bd. of Town of Hamburg,
216 A.D.2d 861 (4th Dep’t 1995) ..............................................................................................7

Woodson v. Mendon Leasing Corp.,
100 N.Y.2d 62 (2003) ..............................................................................................................12

Other Authorities

CPLR 2221...............................................................................................................................7, 8, 9

CPLR 5015............................................................................................................................. passim

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Defendants David Segal, David Segal Antiques LLC, Mohamed Serry, Artique

International Ltd., Artique Multinational LLC, Pacific Platinum, LLC and Segal & Segal

Holding, LLC (collectively, the “Artique Parties” or “Defendants”) respectfully submit this

memorandum of law in opposition to the motion of Plaintiffs Alexander Komolov, Alskom

Realty LLC and High Value Trading LLC (together, “Komolov”) for an order: (1) pursuant to

CPLR 2221(e) for leave to renew the portion of the Court’s Decision and Order, filed on May

13, 2011 (the “Order”), that dismissed Komolov’s breach of contract claim with respect to the

sale of a condominium (the “Condominium Claim”); or, in the alternative, (2) pursuant to CPLR

5015(a)(2) to vacate the portion of the judgment, entered on September 8, 2011, that dismissed

the Condominium Claim (the “Judgment”).

PRELIMINARY STATEMENT

On May 13, 2011, the Hon. Bernard Fried (Ret.) filed an Order in this case dismissing,

inter alia, Komolov’s Condominium Claim on statute of frauds grounds because Komolov could

not produce the written contract of sale (the “Contract”). One week later, Komolov obtained a

copy of the Contract from the title insurance company involved in the transaction. Komolov did

not file a motion to renew pursuant to CPLR 2221(e), and a final judgment dismissing the

Condominium Claim was entered on September 8, 2011, from which Komolov did not appeal.

Instead, on June 13, 2011, one month after Justice Fried dismissed this case—and three

months before Judgment was entered—Komolov made the tactical decision to file a new lawsuit,

which was assigned to the Hon. Shirley Werner Kornreich (the “Second Lawsuit”). The Second

Lawsuit included the same Condominium Claim that had been dismissed by Justice Fried.

Despite Justice Kornreich’s admonition to Komolov’s counsel at oral argument on the motion to

dismiss the Second Lawsuit that he was barred from relitigating the Condominium Claim, and

that his appropriate recourse was to file a renewal motion before Justice Fried, Komolov refused

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to do so and persisted with the Condominium Claim in the Second Lawsuit. As a result, the

Artique Parties were forced to litigate the Second Lawsuit for five years, through motions,

discovery and appeals, until just last month, when the First Department affirmed Justice

Kornreich’s grant of summary judgment dismissing the Second Lawsuit in its entirety. As part

of its decision, the First Department reaffirmed its 2012 decision that affirmed the dismissal of

the Condominium Claim from the Second Lawsuit.

Now, more than five years after the entry of Judgment in this case and the rejection by

Justice Kornreich and the First Department of his attempt to judge shop, Komolov seeks to

restore the Condominium Claim in this case on the ground that the Contract is “newly-

discovered evidence” that would have produced a different result on the motion to dismiss. But

there is nothing “new” about the Contract. Komolov has had it for approximately 5½ years, and

relied on it (unsuccessfully) in opposing the Artique Parties’ motion to dismiss the

Condominium Claim in the Second Lawsuit. Komolov’s gamesmanship has wasted the

resources of three courts, as well as the Artique Parties, and his last-ditch attempt to resurrect his

twice-dismissed Condominium Claim should be denied.

As a matter of law, Komolov falls far short of meeting the requirements for either a

motion to renew or a motion to vacate the judgment. The motion to renew fails because CPLR

2221(e) does not apply where, as here, a decision and order of the court has been reduced to a

final judgment and the time to appeal has expired. Moreover, even were a motion to renew

available to him, Komolov cannot establish that he could not have obtained a copy of the

Contract through the exercise of due diligence and presented it on the original motion to dismiss.

Indeed, the fact that Komolov was able to obtain a copy of the Contract from the title insurance

company within days of the entry of Justice Fried’s Order demonstrates how readily accessible it

was to him.

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Similarly, the motion to vacate under CPLR 5015(a)(2) should be denied because the

Contract does not constitute the requisite “newly-discovered evidence.” It is black letter law that

in order to protect the sanctity and finality of judgments, evidence that was in the moving party’s

possession prior to the entry of judgment does not qualify as “newly-discovered.” Here,

Komolov received the Contract nearly four months prior to the entry of Judgment, and 5½ years

prior to making this motion, thereby barring his motion to vacate.

Finally, while a court has inherent power to vacate its own judgment “for sufficient

reason and in the interests of substantial justice,” such an exercise of discretion should not be

available to a litigant such as Komolov, whose procedural gamesmanship and dilatory conduct

has led to the final and irreversible dismissal of his Condominium claim. See Komolov v. Segal,

No. 651626/2011, 2015 WL 3989028, at *2 (Sup. Ct. N.Y. Cty. July 1, 2015).

Accordingly, and for the following reasons, the law precludes Komolov from obtaining

relief from the Judgment and his motion should be denied.

RELEVANT FACTS AND PROCEDURAL HISTORY

The First Action

On November 10, 2010, Komolov commenced this action (the “First Lawsuit”) by filing

a complaint asserting 26 causes of action against the Artique Parties (the “First Complaint”). See

Affirmation of Jeremy S. Goldman, dated December 12, 2006 (“Goldman Aff.”), Ex. A. In

addition to several claims involving artwork that are not at issue here, Komolov alleged that, in

September 2007, the Artique Parties failed to pay him the $4.1 million they owed for their

purchase of the Condominium. Id. ¶ 35. As to this transaction, the First Complaint included

causes of action for breach of contract, declaratory judgment, a permanent injunction, imposition

of a constructive trust and conversion. Id. ¶¶ 121-143.

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By decision filed May 13, 2011, the Hon. Bernard Fried granted the Artique Parties’

motion to dismiss the First Complaint in its entirety. Goldman Aff., Ex. B. With respect to the

causes of action relating to the Condominium, the Court dismissed the breach of contract claim

because Komolov could not “provide any written agreement regarding the transfer . . ., which

makes the agreement violative of the statute of frauds and unenforceable.” Id. at 18. The Court

also dismissed the remaining claims relating to the sale of the Condominium as being based on

the breach of contract claim. The Judgment dismissing the complaint was entered on September

8, 2011. See Affirmation of Philip C. Chronakis, Dkt No. 77, dated November 29, 2016

(“Chronakis Aff.”), Ex. B.

Discovery of the Written Contract of Sale

On May 19, 2011, one week after Justice Fried issued his Decision and Order dismissing

the First Complaint, and months before Judgment was entered on September 8, 2011, Komolov

obtained a copy of the Contract from Statewide Abstract, the title agency involved in the

transaction. See Goldman Aff., Ex. L (see fax transmission line). Nevertheless, Komolov did

not move for leave to renew Justice Fried’s Order dismissing the Condominium Claim based on

obtaining this new evidence. Komolov also elected not to appeal from either Justice Fried’s

dismissal order or the Judgment that was subsequently entered.

The Second Action

Instead, Komolov commenced the Second Action by filing a new complaint against the

Artique Parties (the “Second Complaint”) that reiterated most of the causes of action asserted in

the First Complaint. Goldman Aff., Ex. C. As to the Condominium transaction, the Second

Complaint included claims for conversion, declaratory judgment and breach of contract. Id. ¶¶

129-145. The Artique Defendants moved to dismiss the Second Complaint in its entirety as

barred by res judicata. As part of his opposition to that portion of the motion seeking dismissal

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of the Condominium Claim, Komolov, for the first time, presented the Contract (which, as

explained above, he had obtained on May 19, 2011) and argued that the Condominium Claim

should not be dismissed as he now possessed the Contract. At oral argument on the motion to

dismiss, Justice Kornreich rejected that argument and told Komolov that his proper recourse was

not to have commenced a second action but to have made a motion for leave to renew before

Justice Fried.1

By Order dated November 3, 2011, modified and amended December 16, 2011, Justice

Kornreich then granted the Artique Parties’ motion to dismiss the Second Complaint in its

entirety, including the Condominium Claim, finding it to be “a repeat of an action brought before

Justice Fried, which was dismissed.” Goldman Aff., Exs. D & E. In a 2012 order (the “2012

Order”), the Appellate Division reinstated certain claims but affirmed Justice Kornreich’s

dismissal of the Condominium Claim, holding that the identical claim had been “dismissed in the

prior action for non-compliance with the statute of frauds” and therefore was res judicata.

Goldman Aff., Ex. F.

After additional motion practice, Komolov filed an Amended Verified Complaint that no

longer included a breach of contract claim as to the Condominium, but instead asserted four

causes of action relating to the Condominium transaction: a request for a declaratory judgment,

unjust enrichment, fraudulent misrepresentation and rescission. Id., Ex. G. By decision and

order dated August 14, 2013, Justice Kornreich granted the Artique Parties’ motion to dismiss

1
See Transcript of Oral Argument, Goldman Aff., Ex. K at 5:3-6 (“You can always bring a
motion to renew or reargue if you felt new facts came forth. You don’t start a second case based
on the exact same transactions.”), 12:15-22 (“As far as I am concerned the remedy you have is
not to start a wholly new action. If in fact you feel you have to make a motion to renew, make
the motion to renew, if you have proper grounds, in front of Justice Fried.”), 14:2-9 (“You can
go back to Justice Fried and say I have new documents and I’m making a motion to renew, if in
fact you have new documents.”).

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the unjust enrichment claim. Id., Ex. H. The Appellate Division affirmed, holding that the

unjust enrichment claim “is precluded in this case because it seeks precisely the same relief that

was barred by the statute of frauds.” Id., Ex. I.

After the parties completed discovery,2 the parties cross-moved for summary judgment,

with Komolov moving for summary judgment on his remaining causes of action regarding the

Condominium, and the Artique Parties moving for summary judgment dismissing all of

Komolov’s claims. In a Memorandum Decision and Order dated July 1, 2015, Justice Kornreich

denied Komolov’s motion and granted summary judgment in favor of the Artique Parties

dismissing all causes of action. The Appellate Division affirmed the dismissal of all of the

claims in a November 15, 2016 decision. See Chronakis Aff., Ex. H. As to the Condominium

Claims, the Appellate Division rejected Justice Kornreich’s suggestion that it reconsider its 2012

Order holding that Komolov was precluded from litigating his Condominium Claim. See id., Ex.

G at 7-9. In doing so, the Appellate Division stated that “[a]lthough the written purchase

agreement was subsequently discovered, plaintiffs did not move to renew in the prior action

(CPLR 2221) and have never sought to be relieved from the judgment in the prior action based

on newly discovered evidence (CPLR 5015[a][2]), and we decline to revisit the prior order in

this new action.” Id., Ex. H.

This motion followed.

2
As Justice Kornreich later observed, “[t]he ensuing discovery on plaintiffs’ artwork and
antiques claims was a costly, time-consuming ordeal, due to the lack of contracts or any clear
writings documenting the transactions. Of course, this is precisely what the statute of frauds is
meant to prevent.” Chronakis Aff., Ex. G at 5.

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ARGUMENT

KOMOLOV’S MOTION FOR LEAVE TO RENEW FAILS BECAUSE RELIEF UNDER
CPLR 2221(e) IS UNAVAILABLE ONCE A FINAL JUDGMENT HAS BEEN ENTERED
AND KOMOLOV CANNOT PROVIDE A REASONABLE JUSTIFICATION FOR
FAILING TO PRESENT THE CONTRACT OF SALE ON THE ORIGINAL MOTION

A. Renewal Under CPLR 2221(e) is Unavailable Because Judgment Has Been Entered

Komolov’s motion for leave to renew under CPLR 2221(e) should be denied. New York

courts unanimously hold that once a decision and order of the court has been reduced to a final

judgment and the time for appeal has expired, relief under CPLR 2221(e) is unavailable and the

only potential recourse is a motion to vacate the judgment under § CPLR 5015. See Curry v.

Vertex Restoration Corp., 252 A.D.2d 360 (1st Dep’t 1998) (“Renewal is not a proper vehicle for

obtaining relief from the judgment.”); Franco Belli Plumbing & Heating & Sons, Inc. v. N.Y.

City Sch. Const. Auth., 142 A.D.3d 1011, 1011-12 (2d Dep’t 2016) (“CPLR 2221 is not the

proper procedural mechanism to address [a final] judgment.”); Maddux v. Schur, 53 A.D.3d 738,

739 (3d Dep’t 2008) (“Initially, we note that a motion to renew pursuant to CPLR 2221 is not the

proper procedural vehicle to address a final judgment[.]”); Reed v. Cty. of Westchester, 243

A.D.2d 714, 714-15 (2d Dep’t 1997) (“Since there was a final judgment on the merits dismissing

this special proceeding, under the circumstances of this case, the petitioner should have moved

pursuant to CPLR 5015 and not by way of a motion to renew under CPLR 2221”); Willard v.

Town Bd. of Town of Hamburg, 216 A.D.2d 861, 861 (4th Dep’t 1995) (“The court properly

denied [the] motion to renew; such motion addresses a prior motion. When a proceeding has

been reduced to a final judgment, however, the proper procedural remedy is a motion pursuant to

CPLR 5015.”); Swope v. Quadra Realty Trust, Inc., 28 Misc. 3d 1209(A), 957 N.Y.S.2d 639

(Sup. Ct. N.Y. Cty. 2010) (“Once a decision and order of the court has been reduced to a final

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judgment and the time to appeal has expired, CPLR 2221(e) is not the proper vehicle to address

that final judgment.”).3

Here, the final judgment in this action was entered on September 8, 2011 and the time for

appeal expired long ago. See Chronakis Aff., Ex. B. Thus, Komolov’s motion for leave to

renew should be denied.

B. With Due Diligence Komolov Could Have Presented the Contract on the Motion

Even if final judgment had not been entered, Komolov’s motion for leave to renew still

would fail because he cannot provide a “reasonable justification” for neglecting to present the

Contract on the original motion, as required by CPLR 2221(e)(3). Komolov alleges that he “did

not have a copy of the contract for sale when the Court adjudicated the motion to dismiss in the

First Action, because [his] former attorney (who handled the sale of the Condominium),

Alexander Kaplan, had been disbarred and incarcerated, and had not provided Plaintiffs with

the bill of sale before losing his license and going to prison.” Chronakis Aff. ¶ 8 (emphasis in

original). However, Komolov admits that he obtained the Contract from the title company

within one week of the dismissal of this action and offers no explanation as to why he had not

obtained it sooner from the title company or any other alternate source.

On a motion for leave to renew, Komolov bears a “heavy burden” of showing that he

could not have discovered the Contract earlier through the exercise of due diligence. See Taub v.

Art Students League of N.Y., 63 A.D.3d 630, 631 (1st Dep’t 2009) (“In any event, the new

3
In none of the cases cited by Komolov did the court suggest that it was proper to grant a motion
to renew after judgment had been entered. In Begler v. Saltzman, 53 A.D.2d 578, 579 (1st Dep’t
1976), the court denied the movant leave to renew even though “no judgment was entered.” In
each of the other cases, the decision does not indicate one way or the other whether judgment
had already been entered. See Framapac Delicatessen, Inc. v. Aetna Cas. & Sur. Co., 249
A.D.2d 36 (1st Dep’t1998) (no discussion of whether judgment was already entered); Segall v.
Heyer, 161 A.D.2d 471 (1st Dep’t1990) (same); Ralat v. N.Y. City Hous. Auth., 265 A.D.2d 185
(1st Dep’t 1999) (same).

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evidence, however, should be rejected for failure to show due diligence in attempting to obtain

the statement before the submission of the prior motion.”); Priant v. N.Y. City Transit Auth., 142

A.D.3d 491, 491 (2d Dep’t 2016) (“On a postappeal motion for leave to renew, the movant bears

a heavy burden of showing due diligence in presenting the new evidence to the Supreme

Court.”). Even if relief was available under CPLR 2221(e), Komolov’s excuses for failing to

present the Contract in opposition to the motion to dismiss fall far short of meeting his “heavy

burden of showing due diligence.” Priant, 142 A.D.3d at 491.

Before filing the First Complaint in 2010, Komolov had more than three years to obtain

documents relating to the sale of the condominium, which closed in 2007. Yet, the evidence

suggests that Komolov waited until after the Artique Parties filed their motion to dismiss the

First Complaint in December 2010 to track down a copy of the Contract. See Chronakis Aff. ¶ 8.

The evidence further shows that Komolov was then able to obtain documents related to the sale

of the condominium, including the contract of sale, from a source other than Komolov’s former

lawyer: all he had to do was ask. Specifically, the evidence demonstrates that Komolov

obtained a copy of the closing statement on April 26, 2011, more than two weeks before Justice

Fried issued his dismissal order. See id., Ex. E (fax line on bottom of last page). Less than three

weeks later, on May 19, 2011, Komolov was able to obtain the Contract from Statewide

Abstract, the title insurance company. See id., passim (fax line at top of document). Under these

circumstances, Komolov cannot show that he could not have obtained a copy of the Contract

earlier through the exercise of due diligence. See Orchard Hotel, LLC v. D.A.B. Grp., LLC, 114

A.D.3d 508, 510 (1st Dep’t 2014) (denying motion to renew where movant “failed to show that

it exercised due diligence in obtaining the documentary evidence” that was available from

multiple sources).

Accordingly, the Court should deny Komolov’s motion for leave to renew.

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II.

KOMOLOV’S MOTION TO VACATE THE JUDGMENT UNDER CPLR 5015(a)(2)
SHOULD BE DENIED BECAUSE THE CONTRACT, WHICH KOMOLOV OBTAINED
MORE THAN 5 ½ YEARS AGO, IS NOT “NEWLY-DISCOVERED EVIDENCE”

Motions pursuant to CPLR 5015(a) are highly disfavored and rarely granted because the

moving party carries a “heavy burden.” See H&Y Realty Co. v. Baron, 193 A.D.2d 429, 430 (1st

Dep’t 1993); Hawkins v. William F. Regan, Inc., 39 A.D.2d 908, 910 (2d Dep’t 1972). “While a

court under CPLR 5015(a) might possess some limited jurisdiction to vacate a final judgment . . .

that discretion must be sparingly exercised lest final judgments be subject to never-ending attack,

undermining the sanctity and finality of judgments.” Nash v. Port Auth. of N.Y. and N.J., 131

A.D.3d 164, 166 (1st Dep’t 2015).

Here, Komolov seeks to vacate the Judgment pursuant to CPLR 5015(a)(2) on the ground

that the Contract constitutes “newly-discovered evidence” that would have produced a different

result on the motion to dismiss. Chronakis Aff. ¶ 36. However, under well-settled New York

law, a motion to vacate is to be denied outright if the moving party possessed the “newly-

discovered” evidence (or could have discovered it with due diligence) prior to the entry of

judgment. See D’Anthony v. Lender, 262 A.D.2d 247, 247-48 (1st Dep’t 1999) (affirming denial

of motion for new trial where the “missing” contract “was actually in plaintiff’s attorney’s

possession for over a year prior to trial, and it appears that a deliberate decision, tactical in

nature, was made not to use it”); Orix Credit All., Inc. v. Grace Indus., Inc., 274 A.D.2d 424, 425

(2d Dep’t 2000) (affirming denial of motion to vacate where the alleged newly-discovered

evidence could have been discovered before the entry of the judgment); McGovern v. Getz, 193

A.D.2d 655, 657 (2d Dep’t 1993) (affirming denial of motion to vacate where moving party “was

aware of the so-called newly-discovered evidence . . . before the divorce judgment was issued”);

Laurenzano v. Laurenzano, 208 A.D.2d 808, 809 (2d Dep’t 1994) (denying motion for new trial

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pursuant to CPLR 5015(a)(2) “[b]ecause the evidence which the appellant claimed was ‘newly

discovered’ was available at the time of trial”); Nahzi v. Lieblich, 29 Misc. 3d 1238(A), 958

N.Y.S.2d 647 (Sup. Ct. N.Y. Cty. 2010) (“Evidence that could have been discovered with due

diligence, but for the neglect of a party’s attorneys is not newly discovered.”).4

In this case, the Contract cannot be used to vacate the Judgment. First, Komolov

obtained a copy of the Contract on May 19, 2011—just one week after the Order was filed. See

Goldman Aff., Exs. J, L. The Judgment was not filed for another four months. See Chronakis

Aff., Ex. B. Because Komolov had actual possession of the Contract approximately four months

prior to the entry of judgment, it cannot be used to vacate the Judgment. See D’Anthony, 262

A.D.2d at 248; McGovern, 193 A.D.2d at 657; Laurenzano, 208 A.D.2d at 809.5

4
The cases Komolov cites (Chronakis Aff. ¶¶ 31, 35) do not hold otherwise. In Prote
Contracting Co. v. Bd. of Educ. of the City of N.Y., 230 A.D.2d 32 (1st Dep’t 1997), the newly-
discovered evidence did not come to light until after the jury had rendered a verdict. In
McCarthy v. Port of N.Y. Auth., 21 A.D.2d 125 (1st Dep’t 1964), although the evidence could
have been made available to defendant before judgment, “it had no reason to believe that
plaintiff and the firemen would testify as grossly as they did concerning them” and the motion
“was promptly made” thereafter. Id. at 128.
5
Furthermore, as set forth in Section I.B, Komolov – through the exercise of ordinary diligence
– could have obtained the sales contract even earlier. Prior to filing the First Lawsuit, or even
while the motion to dismiss was pending, Komolov could have obtained the Contract through the
title insurance company, Statewide Abstract, which is how Komolov ultimately obtained it in
May 2011. See Goldman Aff., Ex. L. Thus, it is of no moment that Komolov’s former attorney
was incarcerated and unable to provide him with a copy of the sales contract. This further
demonstrates why Komolov’s motion should be denied. See Kassis Mgmt., Inc. v. Milstein, 198
A.D.2d 51, 52 (1st Dep’t 1993) (“[A] routine search of real estate records of the City Register by
the plaintiff before the underlying action was commenced would have produced the allegedly
‘newly discovered’ documents.”); In re Chatham Towers, Inc., 39 A.D.3d 308, 309 (1st Dep’t
2007) (“the alleged newly discovered evidence is a matter of public record which, for purposes
of CPLR 5015(a)(2), is generally not deemed new evidence which could not have been
discovered with due diligence before trial”) (internal quotation omitted); Federated
Conservationists of Westchester v. Cty. of Westchester, 4 A.D.3d 326, 327 (1st Dep’t 2004)
(“Evidence which is a matter of public record is generally not deemed new evidence which could
not have been discovered with due diligence before trial.”).

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Furthermore, the Contract does not qualify as “newly-discovered” because Komolov had

it for more than 5½ years before making this motion. See Sieger v. Sieger, 51 A.D.3d 1004, 859

(2d Dep’t 2008) (“the defendant possessed the evidence for several years before making the

motions and, therefore, the evidence cannot be characterized as newly discovered.”). Motions to

vacate must be filed within a reasonable time, and courts have denied such motions where the

“new” evidence was in a party’s possession for two years, let alone more than five years. See

Kleet Lumber Co., Inc. v. Saw Horse Remodelers, Inc., 13 A.D.3d 414 (2d Dep’t 2004) (motion

to vacate default judgment based on newly discovered evidence denied because motion was filed

at least two years after defendant possessed evidence); City of Albany Indus. Dev. Agency v.

Garg, 250 A.D.2d 991 (3d Dep’t 1998) (same); Molina v. Chladek, 140 A.D.3d 523, 524 (1st

Dep’t 2016) (motion to vacate denied where motion was filed five years after entry of a default

judgment). Komolov cites no case allowing a party to vacate a judgment based upon “newly-

discovered evidence” where the motion to vacate was filed more than five years after the party

obtained the “new” evidence.

Finally, while a court in extraordinary circumstances has inherent power to vacate its own

judgment “for sufficient reason and in the interests of substantial justice” (Woodson v. Mendon

Leasing Corp., 100 N.Y.2d 62, 68 (2003)), this is no such case. The court’s discretionary

authority “is not plenary” and should only be used in cases of “fraud, mistake, inadvertence,

surprise or excusable neglect.” Long Is. Light. Co. v Century Indem. Co., 52 A.D.3d 383, 384

(1st Dep’t 2008). “A motion to vacate an order pursuant to CPLR 5015 cannot serve as a

substitute for an appeal, or remedy an error of law that could have been addressed on a prior

appeal.” Angela P. v Floyd S., 103 A.D.3d 439, 440 (1st Dep’t 2013). Nor should the court’s

discretionary power “be exercised where, as here, the moving party has demonstrated a lack of

17 of 19
good faith, or been dilatory in asserting its rights.” Greenwich Sav. Bank v. JAJ Carpet Mart,

Inc., 126 A.D.2d 451, 452-53 (1st Dep’t 1987)

Komolov’s bad faith is immediately apparent. After six-plus years of litigation –

involving 2 lawsuits, 13 motions and 2 appeals – Komolov is n

Case Info

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Shirley Werner Kornreich Track Judge’s New Case

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Document Filed Date

December 12, 2016

Case Filing Date

November 17, 2010

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Parties

Alexander Komolov Plaintiff
ALSKOM REALTY LLC Plaintiff
ARTIQUE INTERNATIONAL LTD Defendant
ARTIQUE MULTINATIONAL LLC Defendant
BEDKE, KATHRYN L Attorney for the Defendants
BERGSTROM, NICOLE Attorney for the Defendants
CHRONAKIS, PHILIP C Attorney for the Plaintiff
David Segal Defendant
DAVID SEGAL ANTIQUES LLC Defendant
GOLDMAN, JEREMY S Attorney for the Defendants
HIGH VALUE TRADING LLC Plaintiff
LERNER, CAREN E Attorney for the Defendants
MAAS, BRIAN EDWARD Attorney for the Defendants
Mohamed Serry Defendant
PACIFIC PLATINUM LLC Defendant
POPIK, ROMAN V. Attorney for the Plaintiff
SEGAL & SEGAL HOLDING LLC Defendant

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Motion-Secondary: Alexander Komolov, Alskom Realty Llc, High Value Trading Llc v. David Segal, David Segal Antiques Llc, Mohamed Serry, Artique International Ltd, Artique Multinational Llc, Pacific Platinum Llc, Segal & Segal Holding Llc

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