Opinion
10-45442
01-02-2019
Steven BEHAN, Plaintiff(s), v. Veronica Helena BEHAN and Anne Hoffman, Defendant(s).
PLTF'S ATTORNEY: JULIANNE LEWIS, ESQ., 136 EAST MAIN STREET, EAST ISLIP, NY 11730 DEFTS' ATTORNEYS: GAYLE A. MANDARO, ESQ., Attorneys for defendant Anne Hoffman, 400 TOWNLINE ROAD, STE 100, HAUPPAUGE, NY 11788 MCCARTHY & CARBONE, P.C., Attorneys for defendant Helena Behan, 400 TOWNLINE ROAD, STE 100, HAUPPAUGE, NY 11788
PLTF'S ATTORNEY: JULIANNE LEWIS, ESQ., 136 EAST MAIN STREET, EAST ISLIP, NY 11730
DEFTS' ATTORNEYS: GAYLE A. MANDARO, ESQ., Attorneys for defendant Anne Hoffman, 400 TOWNLINE ROAD, STE 100, HAUPPAUGE, NY 11788
MCCARTHY & CARBONE, P.C., Attorneys for defendant Helena Behan, 400 TOWNLINE ROAD, STE 100, HAUPPAUGE, NY 11788
Sanford N. Berland, J.
Upon the reading and filing of the following papers in this matter: (1) Order to Show Cause on behalf of plaintiff, dated and entered May 16, 2018, and supporting papers; (2) Answering Affirmation on behalf of defendant Anne Hoffman, dated August 10, 2018, and supporting papers; (3) Replying Affirmation made on behalf of plaintiff, dated August 28, 2018, and supporting papers; it is,
ORDERED that the motion made by plaintiff Steven Behan pursuant to CPLR 2221(d) and (e) is hereby denied; and it is further
ORDERED that the parties are reminded that they are to appear for a compliance conference before Part 6 of the Supreme Court on February 5, 2019 at 9:30 a.m. located at One Court Street in Riverhead, New York.
Plaintiff moves pursuant to CPLR 2221[d] and [e] for leave to reargue or renew his prior motion, made pursuant to CPLR 3025 [b] and [c], which was denied by the court in a decision and order dated March 30, 2018. As characterized by plaintiff, that prior motion sought leave to amend or supplement the complaint to "conform with the pleadings [sic]" and "to add subsequent transactions or occurrences" against the defendants. More precisely, the motion sought to add to the complaint two purported "conspiracy" causes of action, one apparently seeking to allege that the defendants together committed a fraud upon plaintiff Stephen Behan and the court in the prior divorce action that Stephen Behan had brought against one of the defendants in this action, Helena Behan, the other to allege that the defendants committed a fraud upon Mr. Behan and the court in earlier proceedings in this action. The first of the two proposed causes of action were, as originally presented by plaintiff, predicated upon a document submitted to the court in the earlier divorce proceeding, the second upon a disclosure, made during the framed-issue hearing conducted in this action in 2012 and then repeated by counsel in a colloquy on the record at a court appearance in June 2014, that the plaintiff contends had never before been revealed and which allegedly contradict positions previously advanced by the defendants both in this action and in the antecedent divorce action. The "subsequent transaction or occurrence" raised for the first time in the current motion, is the appearance, in February 2018, on the website for the bar-restaurant the ownership of which has been one of the foci of the litigation of a valediction that labels the two defendants as "Your Proprietors." For the reason that follow, the current motion is denied.
Background
This action was brought in 2010 seeking both to set aside what plaintiff Stephen Behan alleged was the fraudulent conveyance by his former wife, defendant Helena Behan, to her business partner, defendant Anne Hoffman, of her interest in Kelron Lounge, Inc., doing business as the Grafton Street Pub ("Kelron") and to recover damages from both defendants for alleged fraud. The gravamen of the action as originally pleaded is that pursuant to a May 15, 2007 stipulation of settlement between the Behans in their divorce proceeding, Helena Behan had agreed to make installment payments totaling $200,000 to Stephen Behan as a "cash payout" for the latter's equitable interest in the former's partial ownership interest in Kelron, an obligation that allegedly was secured by that partial ownership interest; however, when Helena Behan defaulted in December 2007, after having made only the initial $35,000 payment to Stephen Behan, and Stephen Behan exercised his right to accelerate the obligation and then sought to have Helena Behan's entire interest in Kelron transferred to him, Helena Behan represented to the court, and presented documentation purporting to show, that she no longer held any interest in Kelron, having been forced by economic circumstances to transfer her interest to Anne Hoffman, the co-owner of Kelron , for $10,000. As a result, Stephen Behan's application in the divorce action to compel the transfer of Helena Behan's interest in Kelron to him was unsuccessful. However, Helena Behan's separate effort to vacate the stipulation of settlement in the divorce proceeding was also unsuccessful.
The original complaint also alleges, however, that Helena Behan owned 50% of Kelron but transferred only 10 shares, equal to a 10% percent ownership interest, to Hoffman; that Helena Behan "never sold her 50% interest" in Kelron; and that Helena Behan "retained all rights and benefits of her 50% ownership interest in [Kelron] after the Conveyance." In accordance with the sum that the May 15, 2007 stipulation of settlement in the divorce action called for plaintiff to be paid for his equitable interest in Helena Behan's interest in Kelron, a total of $200,000, the complaint also alleges that pursuant to that stipulation, "[d]efendant Behan's interest in [Kelron] is valued at $400,000.00." For relief, it seeks a transfer of Helena Behan's entire 50% in Kelron to plaintiff; $250,000 in fraud damages; $270,000 in lost profits, calculated at $90,000 per year; and $25,000 in legal costs and fees "directly caused by the fraudulent acts of Defendant Behan and Defendant Hoffman."
The current action followed. A motion to dismiss the complaint was filed in October 2011, and on November 29, 2012, after conducting, over the course of several days, a framed-issue hearing limited to the question of whether defendant Helena Behan had any ownership interest in Kelron as of the date - December 28, 2010 - the current action was commenced, the court (Asher, J.) found that she did not, and on January 3, 2013, the case was marked off the compliance calendar. Seven months later, on July 25, 2013, plaintiff moved to have the case restored to the calendar and to proceed to trial on the issue of whether Helena Behan had fraudulently conveyed her interest in Kelron to Hoffman. In a decision and order dated October 15, 2013 (Asher, J.), the court granted plaintiff's application to the explicitly "limited extent" of directing that the Behan parties and their attorneys appear for a settlement conference the following month and dismissed the action against Anne Hoffman, holding that as a result of the determination in the framed issue hearing that Helena Behan did not own any stock in Kelron, "the balance of any and all claims of the plaintiff are now solely against defendant Helena Veronica Behan."
The settlement conference directed by Justice Asher was adjourned several times. In the interim, plaintiff Stephen Behan filed a motion to reargue or renew his motion to restore the case to the compliance calendar. The matter was heard again by Justice Asher on June 24, 2014. Following a conference off the record, Justice Asher went on the record. He summarized the history and posture of the action, expressing his conclusion that his determination at the conclusion of the framed-issue hearing and as embodied in his October 15, 2013 decision and order determined all of the issues in the case, other than Stephen Behan's outstanding judgment against Helen Behan. Then, after hearing argument on the motion to restore from counsel for plaintiff and for defendant Anne Hoffman, Justice Asher reiterated that he had "already conducted a lengthy hearing on all of the issues that have anything to do with this particular case and rendered a decision back on October 15, 2013"; recited that he was "finding now," based upon the arguments of counsel and his familiarity with the case, that "there is no fraudulent conveyance whatsoever ..."; and dismissed the action against the remaining defendant, Helena Behan. Justice Asher so ordered the June 24, 2014 transcript embodying that ruling on July 23, 2014.
Plaintiff appealed both the October 15, 2013 order and the July 23, 2014 order. In a decision dated December 7, 2016, after treating plaintiff's notices of appeal from so much of the October 15, 2013 and July 23, 2014 orders as sua sponte dismissed the complaint as asserted against, respectively, Anne Hoffman and Helena Behan, as applications for leave to appeal from those dismissals, which it then granted, the Appellate Division reversed the October 15, 2013 order on the law, granted Stephen Behan's motion to restore the action to the trial calendar, and, in principal part , reversed the July 23, 2014 order on the law. Behan v. Behan , 145 AD3d 653 (2d Dept 2016). Specifically, the Appellate Division held that the motion to restore the action to the calendar and to proceed to trial on the issue of whether or not the transfer of Behan's interest in Kelron to Hoffman was fraudulent should have been granted, as there was no procedural basis for marking the action off the calendar and the sua sponte dismissals of the complaint as against each defendant on the grounds that all of the issues in the case had been addressed and decided in the framed-issue hearing and that "there is no fraudulent conveyance whatsoever," was contrary to the express limitation of the framed-issue hearing:
The Appellate Division dismissed so much of the appeal from the July 23, 2014 order as sought review of the denial of plaintiff's motion for leave to reargue or renew his motion to restore the action to the calendar, holding that no appeal lies from an order denying reargument and that the appeal from the denial of leave to renew was academic given the reversal of October 15, 2013 order and the granting of the motion to restore. 145 AD3d at 653-54.
[C]ontrary to the court's finding, the hearing court had expressly stated that the sole issue to be decided at the framed-issue hearing was whether the wife had any interest in Kelron as of December 28, 2010, without consideration of whether the defendants had perpetrated a fraudulent conveyance of the wife's interest in Kelron. Thus, the hearing court's finding was not dispositive of the claims asserted against the defendants based on the defendants' allegedly fraudulent conduct.
Plaintiff's Motion to Reargue or Renew His Motion to Amend the Complaint
In relevant part, CPLR 2221(d) requires that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." A motion for leave to reargue is not designed to provide an unsuccessful party with new opportunities to present arguments different from those originally presented ( Amato v. Lord & Taylor, Inc ., 10 AD3d 374, 781 NYS2d 125 [2d Dept 2004] ). On the other hand, CPLR § 2221(e) authorizes a motion for leave to renew based on "new facts not offered on the prior motion that would change the prior determination [provided there is] reasonable justification for the failure to present such facts on the prior motion" ( Simpson v. Tommy Hilfiger, U.S.A. Inc ., 48 AD3d 389 [2d Dept. 2008] ). Although "the requirement that a motion for renewal be based upon newly discovered evidence is a flexible one, a court, in its discretion, may grant renewal even upon facts known to the movant at the time of the original motion." (See Wilder v. May Department Stores , 23 AD3d 646, 648 [2d Dept. 2005] ; Granato v. Waldbaum's , 289 AD2d 289 [2d Dept. 2001] ). However, it is well settled that, "renewal is granted sparingly ...; it is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" ( Beigny v. Wynyard, 132 AD2d 190 [2d Dept1987] ).
Through his underlying motion to amend his complaint, brought on by Notice of Motion dated October 30, 2017, plaintiff sought leave to add two additional causes of action, along with a lengthy series of evidentiary allegations intended to bolster those causes of actions. The first of those proposed causes of action, labeled "Third Cause of Action: Civil Conspiracy Count One," sought to allege that defendants Anne Hoffman and Helena Behan "denied" plaintiff Stephen Behan "his economic interest in the 20 year marriage [to defendant Helena Behan]" and deprived him of his "equitable ownership interest in the Grafton Street Pub, pursuant to the default of Defendant Behan." The defendants allegedly did so, in the first instance, either by causing Helena Behan's shares in Kelron — which plaintiff claims collateralized her payment obligations under the Behans' May 15, 2007 stipulation of settlement in their matrimonial action — to be transferred "out of the reach of Plaintiff Behan," including by acting to "exert dominion over the corporation to commit the wrongful act," or by uttering a "Sale of Corporate Stock" dated June 11, 2007 and signed by both defendants, which Helena Behan submitted both in opposition to Stephen Behan's motion to have her interest in Kelron transferred to him and in support of her contention that she had sold her interest in Kelron to Anne Hoffman on June 11, 2007, prior to her default under the May 15, 2007 stipulation of settlement. According to plaintiff, these acts led the justice presiding over the matrimonial action to hold in abeyance Stephen Behan's motion to have the shares transferred to him. The second additional cause of action, the proposed "Fourth Cause of Action: Civil Conspiracy Count Two," appeared to focus on the current action, claiming that the alleged testimony of the two defendants that Helena Behan's "ownership interest in Grafton Street Pub ended in January 2006," together with their "submission" of that assertion in response to plaintiff's motion to restore the action, resulted in Justice Asher finding that Helena Behan did not own any stock in "the business" and in his dismissing the case, thereby obstructing and delaying plaintiff's efforts "to obtain the collateral," i.e. , to have an ownership interest in, and a share of the profits of, Kelron transferred to him. Although plaintiff sought to allege that some of the allegedly wrongful acts were performed by the defendants "in concert" with one another, that allegation was, like his "conspiracy" allegation, entirely conclusory, with no allegation that the there was any agreement between the two defendants to perform those acts in order to achieve an agreed upon objective.
These recite, for example, that in 2002, defendant Anne Hoffman "relocated her business" and "made arrangements" for defendant Helena Behan to be her business partner; that they agreed to value the business at $300,000 and that Helena Behan "would buy into" the business for a total of $150,000, consisting of a $30,000 down payment and the balance of $120,000 paid in sixty monthly installments, with interest, over five years; that Helena Behan began making monthly payments of $2,230 each in May 2003 but that the parties agreed to postpone payments in March 2005 because the Behans were building a home; that the payments resumed in August 2005 and that "in testimony and collaborated documents [sic]," Helena Behan "paid no less than" twenty-eight payments of $2,230.
It is not entirely clear from the proposed amended complaint whether the "wrongful act" allegedly committed by the corporation - which is not a party to action - was the transfer of shares from Helena Behan to Anna Hoffman on the books of the corporation, Kelron, or some different allegedly wrongful act.
Based upon the transcript of the June 2014 proceedings, this appears to be something of an overstatement. Rather, it appears that what counsel for Anne Hoffman recounted was testimony to the effect that Helena Behan had stopped making payments to Anne Hoffman for her share of the business in January 2006, and that her default was declared some time thereafter, entitling Anne Hoffman to recover Helena Behan's shares in exchange for amount of her original contribution - $10,000 — with Helena Behan retaining whatever distributions she had received up to that time, but that the transfer or repurchase could not be effectuated while certain restraining orders remained in effect in the Behans' divorce proceeding.
In its March 30, 2018 decision and order, this court denied the plaintiff's motion for leave to amend his complaint on the ground that the plaintiff had not alleged any new or additional facts that would warrant amendment of his complaint and that his proposed amendments were duplicative of the causes of action previously pleaded by him. In support of his motion to reargue the denial of his motion, he contends that the court failed to apprehend that the two "conspiracy" claims that he was seeking to add to his complaint are distinct from his original fraud and fraudulent conveyances claims in that they allege that both the utterance of the June 11, 2007 Sale of Corporate Stock instrument together with its presentation to the court in the Behans' divorce action - which plaintiff labels "the June 11, 2007 transfer documentation," and the disclosure, which plaintiff claims first occurred in 2012, in the framed-issue hearing in this action, that defendant Helena Behan's default on her agreement with defendant Hoffman began in early 2006 - according to plaintiff, "the default story" or the "January 2006 narrative" - were "overt acts" in furtherance of, and themselves constituting, separate civil conspiracies that, he claims, have prolonged and frustrated his efforts, both in the earlier divorce proceeding and in this action, to obtain ownership of his former wife's interest in Kelron and have "furthered the injury to the Plaintiff and lost profits through May 2018 and continues" [sic]. He also argues — again in support of his contention that the allegations of his proposed conspiracy claims are not duplicative of his existing claims of fraud and fraudulent conveyance - that the former are aimed at redressing "resulting damages" he has suffered "separate from voiding the conveyance."
Plaintiff's current arguments are no more persuasive than the arguments he presented when he first moved to amend his complaint. As a threshold matter, plaintiff's attempt to clothe what appear to be - but which he denies are - restated elaborations of his fraud and fraudulent conveyance claims in conclusory allegations of conspiracy fail to distinguish his proposed additional allegations from his original claims. It is well settled that New York does not recognize civil conspiracy as an independent cause of action ( Christ the Rock World Restoration Church Intern., Inc. v. Evangelical Christian Credit Union , 153 AD3d 1226, 1230 [2d Dept 2017], citing Lee Dodge, Inc. v. Sovereign Bank, N.A. , 148 AD3d 1007, 1009 [2d Dept 2017]. The sole function of an allegation of civil conspiracy is to extend liability for the tortious conduct of each of the alleged conspirators - to the extent carried out in furtherance of the objective of the conspiracy - to the other participants in the conspiracy ( Anesthesia Assoc. of Mount Kisco, LLP v. N. Westchester Hosp. Ctr. , 59 AD3d 473, 479 [2d Dept 2009] ). Thus, "a cause of action alleging conspiracy to commit a tort stands or falls with the underlying tort" ( Williams v. Williams , 149 AD3d 1145, 1146 [2d Dept 2017], lv to appeal denied, 30 NY3d 913 [2018] ). As the Second Department explained in Anesthesia Assoc. of Mount Kisco, LLP v. N. Westchester Hosp. Ctr.:
"Although an independent cause of action for civil conspiracy is not recognized in this State ... a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme" ( Litras v. Litras, 254 AD2d 395, 396 [1998] ; see Alexander & Alexander of NY v. Fritzen, 68 NY2d 968, 969 [1986] ; Gouldsbury v. Dan's Supreme Supermarket, 154 AD2d 509, 510 [1989] ; Burns Jackson Miller Summit & Spitzer v. Lindner, 88 AD2d 50, 72 [1982], affd 59 NY2d 314 [1983] ). "The allegation of conspiracy carries no greater burden, but also no less, than to assert adequately common action for a common purpose by common agreement or understanding among a group, from which common responsibility derives" ( Goldstein v. Siegel, 19 AD2d 489, 493 [2d Dept 1963] ; see Green v. Davies, 182 NY 499, 503-504 [1905] ; MBF Clearing Corp. v. Shine, 212 AD2d 478, 479 [1995] ; Silver v. Mohasco Corp., 94 AD2d 820, 821 [1983] ).
( Anesthesia Assoc. of Mount Kisco, LLP v. N. Westchester Hosp. Ctr. , 59 AD3d at 479 ).
Here, except to the extent that the allegations of fraud and fraudulent transfer alleged in his original causes of action appear to be reiterated with additional detail by plaintiff in his proposed conspiracy claims - a characterization that plaintiff nonetheless eschews - no other actionable underlying tort is alleged. Indeed, the distinction plaintiff seeks to draw between his original fraud and fraudulent conveyance claims, on the one hand - i.e., that the defendants fraudulently conveyed Helena Behan's interest in Kelron to defendant Hoffman and/or fraudulently claimed that they had done so, thereby thwarting plaintiff's right to have Helena's interest in Kelron transferred to him after she defaulted under the stipulation of settlement in the divorce proceeding- and, on the other hand, his proposed additional allegations - describing some of the means by which he claims the defendants executed the conveyance and carried out the alleged fraud - is, at most, evidentiary, not substantive. Indeed, consistent with the evident lack of substantive distinction between plaintiff's original claims and his proposed conspiracy causes of action is that notwithstanding his contention that the latter are aimed at redressing "resulting damages" separate from the relief sought in his original causes of action, the "consequential damages" he alleges, and seeks to recover, through his two proposed conspiracy claims - $90,000 per year in lost profits from Kelron - mirror the lost profits he alleges and seeks to recover through his original claims. That he also requests punitive damages in connection with his proposed conspiracy causes of action is no more availing either to distinguish those proposed causes of action from his original claims or to provide a foundation for claims of conspiracy, for it is well settled that "[a] demand for punitive damages does not itself constitute a separate legal theory upon which relief may be sought, nor can a claim for punitive damages be stated as a separate cause of action" ( Roldan v. Allstate Ins. Co. , 149 AD2d 20, 38 [2d Dept 1989] ).
Rather, " ‘[a] demand or request for punitive damages is parasitic and possesses no viability absent its attachment to a substantive cause of action’ " ( Williams v. Williams , 149 AD3d 1145, 1146 [2d Dept 2017], lv to appeal denied, 30 NY3d 913 [2018], quoting Rocanova v. Equitable Life Assur. Socy. of U.S ., 83 NY2d 603, 616 [1994] ), and, as here pertinent, may be awarded where "the defendants' conduct was egregious, directed toward the plaintiff, and part of a pattern directed at the public" or, when the "plaintiff's case rest[s] on fraud," the plaintiff "establish[es] that the defendants' conduct was so gross, wanton, or willful, or of such high moral culpability, as to justify an award of punitive damages" ( Crippen v. Adamao , 165 AD3d 1227 [2d Dept 2018] (citations omitted) ). Here, plaintiff's proposed demand for punitive damages mirrored his claims for "consequential damages," $90,000 per year.
Equally unavailing is plaintiff's attempt to ground his proposed conspiracy claims in allegations that defenses asserted, positions taken, and evidence given by the defendants in the earlier divorce action and in the current action were baseless and intended to mislead the court in both actions in order to deny him the ownership interest in, and the corresponding profits from, Kelron to which he claims he is entitled, protracting the litigation and causing him to incur unnecessary legal fees and to suffer "resulting damages" "separate from voiding the conveyance" and "outside the damages recoverable for a fraudulent conveyance." "New York does not recognize an independent cause of action for the imposition of sanctions relating to frivolous actions" ( Lewis, Brisbois, Bisgaard & Smith, LLP v. Law Firm of Howard Mann , 141 AD3d 574, 576 [2d Dept 2016] ), nor does it "recognize an independent cause of action for the imposition of sanctions under either CPLR 8303-a or Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1" ( Cerciello v. Admiral Ins. Brokerage Corp ., 90 AD3d 967, 968 [2d Dept 2011] ).
The imposition of such sanctions may be sought, where called for, by appropriate application to the court. See, e.g., 22 NYCRR § 130-1.1(d). 22 NYCRR § 130-1.1(a) provides, in pertinent part, that:
The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart.....
Pursuant to 22 NYCRR § 130-1.1, conduct in a civil action is "frivolous" if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false....
Further, "a court has inherent power to address actions which are meant to undermine the truth-seeking function of the judicial system and place in question the integrity of the courts and our system of justice" ( CDR Creances S.A.S. v. Cohen , 23 NY3d 307, 318 [2014] ), including "fraud on the court," that is, "wilful conduct that is deceitful and obstructionistic, which injects misrepresentations and false information into the judicial process "so serious that it undermines ... the integrity of the proceeding" (id. , citing Baba—Ali v. State of New York , 19 NY3d 627, 634, 951 N.Y.S.2d 94, 975 N.E.2d 475 [2012] ). See Bessa v. Anflo Indus., Inc. , 148 AD3d 974, 976 [2d Dept 2017].
Nor can he use such allegations as means to mount a collateral attack on prior orders or determinations made in either this action or in the prior divorce proceeding between the Behans. From inception, the gravamen of this action, as pleaded by plaintiff, has been that the defendants fraudulently defeated his right to succeed to his former wife's interest in Kelron, either through an allegedly fraudulent conveyance of that interest, by defendant Behan to defendant Hoffman, or by fraudulently representing that defendant Behan's interest in Kelron had been transferred to defendant Hoffman when in fact it had not been and continued to be retained by defendant Behan. The latter contention was decided by Justice Asher on November 29, 2012, when, after a lengthy framed-issue hearing, he found that defendant Helena Behan "did not have any ownership interest in Kelron as of December 28, 2010," the date this action was commenced. ( Behan v. Behan, 145 AD3d 653, 654 [2d Dept 2016] ). Although plaintiff successfully appealed Justice Asher's subsequent orders, which denied plaintiff's motion to restore the action to the calendar and dismissed the complaint as to each defendant, Justice Asher's November 29, 2012 determination appears not to have been appealed by plaintiff and, in any event, was not disturbed by the Appellate Division when it reversed Justice Asher's other orders and held that Justice Asher's finding "was not dispositive of the claims asserted against the defendants based on the defendants' allegedly fraudulent conduct" in transferring Helena Behan's interest in Kelron to Hoffman ( Behan v. Behan , supra, 145 AD3d at 656 ). To the extent plaintiff's proposed conspiracy claims are intended as a stratagem to circumvent Justice Asher's November 29, 2012 determination, they constitute an impermissible collateral attack on a prior order (see, e.g. , Vasciannio v. Nedrick , 305 AD2d 420, 421 [2d Dept 2003] ; Amona v. County of Orange , 123 AD3d 1117, 1118-19 [2d Dept 2014] and cases cited). See generally DeMartino v. Lomonaco , 155 AD3d 686, 687-88 [2d Dept 2017], citations omitted ("Generally, a party who has lost an action as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action against the party who adduced the false evidence, and the plaintiff's remedy lies exclusively in moving to vacate the judgment"); Maa-Sharda, Inc. v. First Citizens Bank & Tr. Co. , 149 AD3d 1484, 1485 [4th Dept 2017], lv to appeal denied, 29 NY3d 916 [2017], citations omitted ("A litigant's remedy for alleged fraud in the course of a legal proceeding lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the [judgment] due to its fraudulent procurement, not a second plenary action collaterally attacking the" judgment").
For the same reasons, the February 2018 website reference to "Helena" as a "proprietor" of the pub-restaurant does not compel a different result here. Although the effort on behalf of Hoffman to distance the defendants from the page's content is, on the current record, highly problematic, to the extent plaintiff is citing the reference as inconsistent either with the November 29, 2012 determination or with the defendants' ongoing denials that Helena Behan has a continuing ownership interest in Kelron, the proposed amendment to the complaint is not the appropriate vehicle for asserting that claimed inconsistency or, again, for challenging the November 29, 2012 determination.
Accordingly, and for all of the above reasons, plaintiff's motion is denied.
The parties are reminded of the herein scheduled compliance conference on February 5, 2019 at 9:30 a.m.