Wall Street Clearing Co. v. Ainbinder

Feb 28, 1995
Versions:212 A.D.2d 488
623 N.Y.S.2d 213
1995 N.Y. App. Div. LEXIS 2302

—Order, Supreme Court, New York County (Carol Arber, J.), entered October 13, 1993 *489which, inter alia, denied defendant’s motion to vacate the November 3, 1989 judgment entered against him on grounds of newly discovered evidence, unanimously affirmed, without costs.

The claims and factual allegations asserted by defendant in support of the instant motion are the same as those raised and rejected in opposition to plaintiffs motion for summary judgment in lieu of complaint in 1989 and in defendant’s motion in 1992 to vacate the judgment. Moreover, were the Court to consider the arguments on the merits, it is well settled that the threatened exercise of a legal right cannot constitute evidence of duress (Edison Stone Corp. v 42nd St. Dev. Corp., 145 AD2d 249, 254). In this case, defendant made no demonstration that plaintiff lacked the absolute right to withdraw its agreement to indemnify his trading activities at any time it chose to do so. Moreover, defendant’s remaining allegations, even if true, have no legal significance in terms of the clear allocation of risk he assumed in signing the note. Accordingly, we find no basis to disturb the finding, made by three IAS Court Justices, that plaintiff made out a prima facie case of entitlement to payment on the note, and defendant failed to raise a triable issue of fact in opposition thereto (see, Bank Leumi Trust Co. v Rattet & Liebman, 182 AD2d 541, 542). Concur—Sullivan, J. P., Rosenberger, Wallach and Rubin, JJ.