Opinion
May 26, 1998
Appeal from the the Supreme Court, Suffolk County. (Doyle, J.)
Ordered that the appeal by the defendant Aries Striping, Inc., is dismissed, as that, defendant is not aggrieved by the order appealed from ( see, CPLR 5511) and, in any event, for failure to perfect the same in accordance with the rules of this Court ( see, 22 NYCRR 670.8 [c], [e]); and it is further,
Ordered that the order is affirmed; and it is further,
Ordered that the respondent is awarded one bill of costs.
A party seeking to vacate a judgment on the basis of fraud "'will not prevail by merely showing fraud in the underlying transaction but must show fraud in the very means by which the judgment was procured" ( Cofresi v. Cofresi, 198 A.D.2d 321, citing Bell v. Town Bd., 146 A.D.2d 729; see. also, Balatti v. Balatti, 232 A.D.2d 593; Fidelity N.Y. v. Hanover Cos., 162 A.D.2d 582).
In the instant matter, the allegations of fraud asserted by the defendant. New York Surety, Inc., relate to the underlying transaction and not to the procurement of the order. Accordingly, the Supreme Court properly denied that branch of the motion of the defendant New York Surety, Inc., which was to vacate the courts prior order ( see, Balatti v. Balatti, supra; Cofresi v. Cofresi, supra).
The remaining contentions of the defendant New York Surety, Inc., are without merit.
Rosenblatt, J.P., Miller, Thompson and Santucci, JJ., concur.