Opinion
04-28-2017
MAA–SHARDA, INC., and Hinaben P. Patel, also known as H.P. Patel, Plaintiffs–Appellants, v. FIRST CITIZENS BANK & TRUST CO., J. Barry Dumser, Indus PVR, LLC, and Goonjit "Jett" Mehta, Defendants–Respondents.
Trevett Cristo Salzer & Andolina P.C., Rochester (Robert J. Lunn of Counsel), and Frank A. Aloi, for Plaintiffs–Appellants. Nixon Peabody LLP, Rochester (Meghan K. McGuire of Counsel), for Defendants–Respondents First Citizens Bank & Trust Co. and J. Barry Dumser. Woods Oviatt Gilman LLP, Rochester (John C. Nutter of Counsel), for Defendants–Respondents Indus PVR, LLC and Goonjit "Jett" Mehta.
Trevett Cristo Salzer & Andolina P.C., Rochester (Robert J. Lunn of Counsel), and Frank A. Aloi, for Plaintiffs–Appellants.
Nixon Peabody LLP, Rochester (Meghan K. McGuire of Counsel), for Defendants–Respondents First Citizens Bank & Trust Co. and J. Barry Dumser.
Woods Oviatt Gilman LLP, Rochester (John C. Nutter of Counsel), for Defendants–Respondents Indus PVR, LLC and Goonjit "Jett" Mehta.
PRESENT: WHALEN, P.J., SMITH, CENTRA, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:
Previously, Indus PVR, LLC, a defendant in this matter, commenced a foreclosure proceeding against, inter alia, MAA–Sharda, Inc., a plaintiff in this matter. A judgment of foreclosure was granted, and was later affirmed by this Court (Indus PVR LLC v. MAA–Sharda, Inc., 140 A.D.3d 1666, 34 N.Y.S.3d 816, lv. denied in part and dismissed in part 28 N.Y.3d 1059, 43 N.Y.S.3d 241, 65 N.E.3d 1276 ). After the judgment in the foreclosure action was granted but before this Court affirmed it, plaintiffs commenced this action asserting, inter alia, a cause of action for "fraud on the court" based upon allegations that defendants committed fraud in the prior foreclosure proceeding. Plaintiffs now appeal from an order that, inter alia, dismissed the amended complaint. We affirm. "To the extent that the [amended] complaint alleged fraud, misrepresentation, or other misconduct of an adverse party committed during the course of the prior litigation, plaintiff[s'] sole remedy was a motion to vacate the court's prior order pursuant to CPLR 5015(a)(3). 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 (Kai Lin v. Department of Dentistry, Univ. of Rochester Med. Ctr., 120 A.D.3d 932, 932, 991 N.Y.S.2d 207, lv. denied 24 N.Y.3d 916, 4 N.Y.S.3d 602, 28 N.E.3d 38 [internal quotation marks omitted]; see Stewart v. Citimortgage, Inc., 122 A.D.3d 721, 722, 996 N.Y.S.2d 638 ). Contrary to plaintiffs' further contention, this case does not fit within the exception set forth in ( Newin Corp. v. Hartford Acc. & Indem. Co., 37 N.Y.2d 211, 217, 371 N.Y.S.2d 884, 333 N.E.2d 163 ), which applies when the alleged fraud or perjury "is merely a means to the accomplishment of a larger fraudulent scheme," i.e., one "greater in scope than [that] in the prior proceeding" (Retina Assoc. of Long Is. v. Rosberger, 299 A.D.2d 533, 533, 751 N.Y.S.2d 50, appeal dismissed and lv. denied 99 N.Y.2d 624, 760 N.Y.S.2d 89, 790 N.E.2d 262 [internal quotation marks omitted]; see Pieroni v. Phillips Lytle LLP, 140 A.D.3d 1707, 1709, 34 N.Y.S.3d 555, lv. denied 28 N.Y.3d 901, 40 N.Y.S.3d 349, 63 N.E.3d 69 ; cf. Specialized Indus. Servs. Corp. v. Carter, 68 A.D.3d 750, 751–752, 890 N.Y.S.2d 90 ). We agree with Supreme Court that "plaintiff[s'] conclusory allegation of a larger fraudulent scheme appears to be ‘a transparent and patently insufficient attempt to bring this action within the Newin exception’ " (Cattani v. Marfuggi, 74 A.D.3d 553, 555, 902 N.Y.S.2d 539, lv. dismissed 15 N.Y.3d 900, 912 N.Y.S.2d 568, 938 N.E.2d 1003, lv. denied 18 N.Y.3d 806, 940 N.Y.S.2d 215, 963 N.E.2d 792 ).
We have considered plaintiffs' remaining contentions and conclude that none requires reversal or modification of the order.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.