Opinion
2018–03053 Index No. 614230/17
07-17-2019
Ariel KEIS, etc., Appellant, v. Paul J. MARGIOTTA, etc., Respondent.
Ariel Keis, Patchogue, NY, appellant pro se. Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Daniel E. Furshpan of counsel), for respondent.
Ariel Keis, Patchogue, NY, appellant pro se.
Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Daniel E. Furshpan of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., JEFFREY A. COHEN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER ORDERED that on the Court's own motion, the notice of appeal from so much of the order as granted the defendant's cross application, in effect, pursuant to CPLR 3211(a)(7) to dismiss the complaint is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal from that portion of the order is granted; and it is further,
ORDERED that the order is affirmed, with costs.
The plaintiff was charged by simplified information with operating an unregistered motor vehicle in violation of Vehicle and Traffic Law § 401(1) and operating an uninspected motor vehicle in violation of Vehicle and Traffic Law § 306(b). Upon the plaintiff's failure to answer or appear in connection with the charges, the Suffolk County Traffic and Parking Violations Agency convicted him of the charges, imposed fines, and filed a judgment against him pursuant to Vehicle and Traffic Law § 1806–a. The plaintiff commenced this action, inter alia, to vacate the judgment rendered upon his default, and subsequently moved for the same relief. The defendant made a cross application, in effect, pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action (see Fried v. Jacob Holding, Inc. , 110 A.D.3d 56, 970 N.Y.S.2d 260 ). The Supreme Court granted the cross application and denied the motion. The plaintiff appeals.
No plenary action lies to vacate a default judgment, and relief under CPLR 5015(a) must be sought by a motion in the court that rendered the challenged judgment (see CPLR 5015[a] ; James v. Shave , 62 N.Y.2d 712, 714, 476 N.Y.S.2d 532, 465 N.E.2d 39 ; Matter of Calabrese Bakeries, Inc. v. Rockland Bakery, Inc. , 83 A.D.3d 1060, 1061, 923 N.Y.S.2d 556 ; Babu v. 29 Cortlandt St. Realty Corp. , 289 A.D.2d 273, 735 N.Y.S.2d 135 ; Levine v. Berlin , 46 A.D.2d 902, 362 N.Y.S.2d 186 ; Matter of Voccola v. Shilling , 57 A.D.2d 931, 394 N.Y.S.2d 577, affg 88 Misc.2d 103, 103, 388 N.Y.S.2d 71 [Sup. Ct., Kings County] ; 10 Weinstein–Korn–Miller, N.Y. Civ Prac CPLR ¶ 5015.15). In any event, the plaintiff's allegations failed to show any basis which would have entitled him to vacatur had he made the appropriate motion (see CPLR 5015[a] ; Babu v. 29 Cortlandt St. Realty Corp. , 289 A.D.2d at 273–274, 735 N.Y.S.2d 135 ).
The plaintiff's remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination to deny the plaintiff's motion and grant the defendant's cross application to dismiss the complaint for failure to state a cause of action.
SCHEINKMAN, P.J., COHEN, MALTESE and LASALLE, JJ., concur.