Opinion
February 20, 1996
Appeal from the Supreme Court, New York County (Walter Tolub, J., Eugene Nardelli, J.).
Under the present facts and circumstances, the IAS Court properly denied defendants' motion to set aside the judgment pursuant to CPLR 5015 (a) (3) and (4) made some six years after the judgment had been entered and nearly four years after the appeal therefrom was dismissed for failure to perfect.
Defendants may not attack the viability of a judgment by urging, so many years after the judgment, that a necessary party to the action was not joined, particularly where defendants did not assert lack of jurisdiction and/or the nonjoinder of a necessary party in their answer to the complaint and never, at any time, informed either the court or plaintiffs that a purportedly necessary party had not been named as one of the defendants.
As for the "fraud, misrepresentation, or other misconduct" referred to in paragraph (3) of CPLR 5015 (a), these factors are applicable to what has either occurred prior to the judgment or was the means by which the judgment was obtained ( see, Oppenheimer v. Westcott, 47 N.Y.2d 595; Mizerik v. Mizerik, 170 A.D.2d 886; Sirota v. Kloogman, 140 A.D.2d 426; Abacus Real Estate Fin. Co. v. P.A.R. Constr. Maintenance Corp., 128 A.D.2d 821; Greenwich Sav. Bank v. JAJ Carpet Mart, 126 A.D.2d 451).
We have considered defendant-appellant's remaining arguments and find them to be without merit. However, given the passage of time since entry of the judgment, we deem it appropriate to remand the matter for determination of the terms and conditions of the closing, which should take place promptly thereafter.
Concur — Milonas, J.P., Ellerin, Wallach, Kupferman and Williams, JJ.