3342N. ARON GRINSHPUN plf-res, v. GENNADY (a/k/a EUGENE) BOROKHOVICH, def-ap, VITALY ZARETSKY, def — Krol & O’Connor, New York (Igor Krol of counsel), for ap — Michael Konopka & Associates, P.C., New York (Michael Konopka of counsel), for res — Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered November 9, 2015, which denied defendant Gennady Borokhovich’s motion to vacate the default judgment entered November 11, 2011, unanimously affirmed, with costs.
Defendant failed to show, in support of vacatur pursuant to CPLR 5015(a)(2), that the agreements in which plaintiffs allegedly released him from liability “could not have been previously discovered by the exercise of due diligence” (Prote Contr. Co. v. Board of Educ. of City of N.Y., 230 AD2d 32, 39 [1st Dept 1997]). Defendant has been in possession of the agreements since the inception of the litigation. While he claims that he was unable to access the agreements due to hurricane damage to his home office and marital difficulties, lack of access did not prevent him from alerting the court to their existence. Defendant claims that he did not know of the releases. However, he admits knowing that plaintiffs “promised to release him” and that, in consideration for one of the agreements, he was to be “left in peace.” This knowledge should have prompted further inquiry. At the very least, defendant should have brought the November 2006 release to the court’s attention when it was produced to his attorneys, one year before the instant motion was made.
