Abacus Real Estate Finance Co. v. P.A.R. Construction & Maintenance Corp.

128 A.D.2d 821, 513 N.Y.S.2d 743, 1987 N.Y. App. Div. LEXIS 44512

Opinion

.In an action to recover on a promissory note, the defendants appeal from an order of the Supreme Court, Nassau County (Meade, J.), entered May 7, 1986, which denied their motion to vacate a judgment entered against them on July 8, 1985.

Ordered that the order is affirmed, with costs.

We find no error in the determination of the Supreme Court that the defendants failed to establish that the judgment against them was procured by fraud (see, CPLR 5015 [a] [3]). The defendants’ contention that the plaintiff was seeking to recover an illegal brokerage commission is nothing more than a newly interposed theory of defense which could have been asserted prior to the entry of judgment (see, Central Funding Co. v Kimler, 54 AD2d 748). Equally unavailing is the defendants’ contention that the judgment should have been vacated because Abacus Mortgage Investment Co. acted illegally in making a loan without first obtaining a license from the Superintendent of Banking as well as its argument that the court lacked jurisdiction to enter judgment (see, CPLR 5015 [a] [4]; Lacks v Lacks, 41 NY2d 71, rearg denied 41 NY2d 862). Brown, J. P., Niehoff, Eiber and Sullivan, JJ., concur.