Opinion
2020-05287 Index No. 1282/16
12-15-2021
In the Matter of JDM HOLDINGS, LLC, appellant, v. VILLAGE OF WARWICK, respondent, et al., nominal defendant-respondent.
Ostrer & Associates, P.C., Chester, NY (Benjamin Ostrer and Hasapidis Law Offices [Annette Hasapidis ], of counsel), for appellant. Drake Loeb PLLC, New Windsor, NY (Stephen J. Gaba of counsel), for respondent.
Ostrer & Associates, P.C., Chester, NY (Benjamin Ostrer and Hasapidis Law Offices [Annette Hasapidis ], of counsel), for appellant.
Drake Loeb PLLC, New Windsor, NY (Stephen J. Gaba of counsel), for respondent.
MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In a hybrid proceeding pursuant to CPLR article 78 and action for declaratory relief, the plaintiff/petitioner appeals from an order of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated May 5, 2020. The order denied the plaintiff/petitioner's motion to vacate (1) so much of an order and judgment (one paper) of the same court dated November 3, 2017, as granted those branches of the motion of the Village of Warwick which were for summary judgment with respect to the second, third, fourth, sixth, seventh, and eighth causes of action of the complaint/petition, and (2) so much of an order of the same court dated September 4, 2018, as, upon renewal, adhered to that determination in the order and judgment dated November 3, 2017.
ORDERED that the order dated May 5, 2020, is affirmed, with costs.
In an order dated May 5, 2020, the Supreme Court denied the plaintiff/petitioner's motion to vacate so much of an order and judgment of the same court dated November 3, 2017, as granted those branches of the motion of the Village of Warwick which were for summary judgment with respect to the second, third, fourth, sixth, seventh, and eighth causes of action of the complaint/petition, and so much of an order of the same court dated September 4, 2018, as, upon renewal, adhered to that determination in the order and judgment dated November 3, 2017. The plaintiff/petitioner appeals.
Pursuant to CPLR 5015(a)(3), a court may vacate an order or judgment based upon, inter alia, fraud, misrepresentation, or other misconduct of an adverse party. Here, the plaintiff/petitioner failed to satisfy its burden of establishing that the subject portions of the order and judgment dated November 3, 2017, and the order dated September 4, 2018, were procured through fraud or other misconduct (see Bay Crest Assn., Inc. v. Paar, 99 A.D.3d 744, 746, 952 N.Y.S.2d 211 ). The plaintiff/petitioner also failed to show that there was a basis to invoke the court's inherent power to vacate the subject portions of the order and judgment and the order in the interest of substantial justice (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 ). Accordingly, the Supreme Court properly denied the plaintiff/petitioner's motion to vacate the subject portions of the order and judgment and the order.
DILLON, J.P., HINDS–RADIX, CHRISTOPHER and ZAYAS, JJ., concur.