Summary
affirming denial of CPLR 5015 motion where movant failed to demonstrate clear and convincing evidence of fraud
Summary of this case from Kolchins v. Evolution Markets Inc.Opinion
2011-10-25
101 MAIDEN LANE REALTY CO., LLC, Petitioner–Respondent,v.TRAN HAN HO, et al., Respondents–Appellants.101 Maiden Lane Realty Co., LLC, Petitioner–Respondent,v.Sun Mei Inc., etc., Respondent–Appellant.
Law Offices of Sanford F. Young, P.C., New York (Sanford F. Young of counsel), for appellants.Ofeck & Heinze, LLP, Hackensack, NJ (Mark F. Heinze of counsel), for respondent.
Law Offices of Sanford F. Young, P.C., New York (Sanford F. Young of counsel), for appellants.Ofeck & Heinze, LLP, Hackensack, NJ (Mark F. Heinze of counsel), for respondent.
Order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered on or about January 18, 2007, which, to the extent appealed from, affirmed an order of Civil Court, New York County (Anil C. Singh, J.), entered on or about December 16, 2005, denying respondents tenants' motion to vacate the final judgment in a commercial nonpayment summary proceeding on
the ground of fraud, unanimously affirmed, with costs.
In affirming the Civil Court's denial of the motion to vacate the final judgment pursuant to CPLR 5015(a)(3), the Appellate Term held the issue of the validity of the lease has been “firmly finally resolved in prior litigation,” including an order by this Court affirming the dismissal of a plenary action challenging the validity of the lease on grounds of res judicata and collateral estoppel ( Sun Mei Inc. v. Chen, 21 A.D.3d 265, 800 N.Y.S.2d 133 [2005] ). While appellants are correct that this court has “inherent and plenary authority to exercise its discretion to review a previous order obtained by means of misconduct by a party towards the court” ( Cohoes Realty Assoc. v. Lexington Ins. Co., 292 A.D.2d 51, 745 N.Y.S.2d 1 [2002] (internal citations omitted); see also Shouse v. Lyons, 4 A.D.3d 821, 772 N.Y.S.2d 177 [2004] ), respondents have not made an adequate showing in this case.
Although respondents assert that the December 1992 lease which was produced at trial was a fabrication and a forgery, the unsworn reports of their forensic expert are not in admissible form and therefore lack probative value ( see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76 [1991]; Quinones v. Ksieniewicz, 80 A.D.3d 506, 915 N.Y.S.2d 70 [2011]; Shinn v. Catanzaro, 1 A.D.3d 195, 767 N.Y.S.2d 88 [2003] ). Even were this Court to consider the forensic reports as competent evidence, there is no proof as to when the lease was allegedly altered or that petitioner, who purchased the property in 1998, knew that the 1992 lease produced at trial was a “fake,” or any evidence of wrongdoing by petitioner which could serve as a basis for vacatur of the judgment pursuant to CPLR 5015(a)(3).