Linda P. Nash, Appellant,v.The Port Authority of New York and New Jersey, Respondent.BriefN.Y.October 9, 2013APL-2013-00027 To be Argued by: GREGORY SILBERT (Time Requested: 30 Minutes) New York County Clerk's Index No. 129074/93 Grnurt nf Appeals nftq~ ~tate nf New Vnrk ------~··.------ LINDA P. NASH, Plaintiff-Appellant, -against- THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT Date Completed: July 8, 2013 WElL, GOTSHAL & MANGES LLP RICHARD A. ROTHMAN GREGORY SILBERT KARIN PORTLOCK 767 Fifth Avenue New York, New York 10153 Tel.: (212) 310-8000 Fax: (212) 310-8007 -and- GoLDBERG SEGALLA LLP 100 Garden City Plaza, Suite 225 Garden City, New York 11530 Tel.: (516) 281-9800 Fax: (516) 281-9801 Attorneys for Defendant-Respondent TABLE OF CONTENTS Page PRELIMINARY STATEMENT ................................................................................ ! QUESTIONS PRESENTED ...................................................................................... 3 STATEMENT OF THE CASE .................................................................................. 4 A. Joinder of the World Trade Center Cases ...................................................... 4 B. The Joint Trial and Verdict on Liability ........................................................ S C. Nash's Participation in the Appeal of the Liability Order ............................. S D. This Court's Reversal of the Liability Order ................................................. 9 E. The Motion to Vacate Nash's Judgment .................................................... 10 ARGUMENT .......................................................................................................... 11 I. The Supreme Court Properly Granted The Port Authority's Motion to Vacate the Judgment ......................................................................................... 11 A. The Supreme Court Unquestionably Possessed Jurisdiction and Authority to Vacate The Final Judgment in Favor of Nash ....................... 12 1. It Is Well-Established that CPLR SOlS Authorizes Vacatur of Final Judgments After Direct Appeals Have Been Exhausted ............. 12 2. CPLR SOlS Was Designed Specifically to Provide Relief from a Final Judgment After a Case Has Terminated ...................................... 16 3. If CPLR S015(a)(S) Did Not Apply to Final Judgments, It Would Be Completely Superfluous .................................................................. 17 4. CPLR SOlS's Federal Counterpart and Parallel Provisions in Sister States Confirm that CPLR SOlS Applies to Vacate Final, Unappealable Judgments ...................................................................... 20 S. Nash's Argument Finds No Support From any Precedent or Authority Concerning CPLR SOlS ....................................................... 21 B. The Supreme Court Did Not Abuse Its Discretion As A Matter of Law in Granting the Port Authority's Motion under CPLR SOlS .............. 27 C. The Supreme Court Did Not Abuse Its Discretion As a Matter of Law in Granting the Port Authority's Motion Pursuant to Its Inherent Power to Grant Relief from a Judgment It Entered .................................... 29 1 US_ACTIVE:\44261848\ 15\68050.0049 TABLE OF CONTENTS (continued) II. Nash's Remaining Assertions Would Not Constitute Error as a Matter of Page Law and Are False in Any Event.. .................................................................... 32 A. The Port Authority's Acknowledgement at Oral Argument that "Settlements" Would Not Be "Unraveled" by a Reversal of the Liability Order Has No Bearing on Nash's Case, Which Was Never Settled ......................................................................................................... 3 2 B. This Court Reviewed the Liability Claim Made by Nash and All Her Co-Plaintiffs on the Merits and Nash Actively Participated in that Review, with the Port Authority's Full Consent ........................................ 35 CONCLUSION ....................................................................................................... 39 11 US_ACTIVE:\44261848\ 15\68050.0049 TABLE OF AUTHORITIES Page(s) Cases Aces Mech. Corp. v. Cohen Bros. Realty & Constr. Corp., 136 A.D.2d 503 (1st Dep't 1988) ....................................................................... 15 Allen v. Murphy, 45 A.D.2d 693 (1st Dep't 1974) ......................................................................... 15 Alliance Property Mgmt. and Dev., Inc. v. Andrews Ave. Equities, Inc., 70 N.Y.2d 831 (1987) ......................................................................................... 12 Bray v. Cox, 38 N.Y.2d 350 (1976) ......................................................................................... 23 CT Chems. (U.S.A.) Inc. v. Vinmar Impex, Inc., 198 A.D.2d 727 (1st Dep't 1993) ....................................................................... 28 Daniels v. Millar Elevator Indus., 44 A.D.3d 895 (2d Dep't 2007) .......................................................................... 17 Deeves v. Fabric Fire Hose Co., 19 A.D.2d 735 (2d Dep't 1963), aff'd, 14 N.Y.2d 633 (1964) ........................... 23 Dupkanicova v. James, 17 A.D.3d 627 (2d Dep't 2005) .......................................................................... 15 Edson v. Southold Town Zoning Bd. of Appeals, 101 A.D.2d 591 (2d Dep't 1984) ........................................................................ 26 Environmental Concern, Inc. v. Larchwood Const. Corp., 102 A.D.3d 687 (2d Dep't 2013) ........................................................................ 26 FDIC v. United Pacific Ins. Co., 152 F.3d 1266 (lOth Cir. 1998) .......................................................................... 20 111 US_ACTIVE:\44261848\ 15\68050.0049 TABLE OF AUTHORITIES (continued) Feldberg v. Howard Fulton St., Inc., Page(s) 44 Misc.2d 218 (Sup. Ct., Kings Co. 1964), aff'd, 24 A.D.2d 704 (2d Dep't 1965) ................................................................................................................... 15 Halpern v. Amtorg Trading Corp., 292 N.Y. 42 (1944) ............................................................................................. 27 Haverstraw Park, Inc. v. Runcible Props. Corp., 33 N.Y. 637 (1973) ............................................................................................. 24 James v. Shave, 62 N.Y.2d 712 (1984) ......................................................................................... 17 Jericho Union Free Sch. Dist. No. 15 v. Board of Assessors, 131 A.D.2d 482 (2d Dep't 1987) ........................................................................ 19 Jennings v. Doyle, 263 App. Div. 488 (3d Dep't 1942) .................................................................... 15 Jones v. Smith, 5 Kan.App.2d 352, 616 P.2d 300 (1980) ............................................................ 21 Lacks v. Lacks, 41 N.Y.2d 71 (1976) .................................................................................... passim Ladd v. Stevenson, 112 N.Y. 325 (1889) ........................................................................................... 16 Levitt v. County of Suffolk, 166 A.D.2d 421 (2d Dep't 1990) ........................................................................ 14 Maddux v. Schur, 53 A.D.3d 738 (3d Dep't 2008) .......................................................................... 11 Maddux v. Schur, 83 A.D.3d 1156 (3d Dep't 2011) ........................................................................ 18 IV US_ACTIVE:\44261848\ 15\68050.0049 TABLE OF AUTHORITIES (continued) Manhattan Telecommunications Corp. v. H&A Locksmith, Inc., Page(s) -- N.E.2d- 2013 WL 2338405 (May 30, 2013) ................................................. 14 Matter of McCabe v. Bd. of Appeals, 31 A.D.3d 451 (2d Dep't 2006) .......................................................................... 18 Matter of Commercial Structures, Inc., v. City of Syracuse, 97 A.D.2d 965 (4th Dep't 1983) ......................................................................... 20 Matter of Huie v. Furman, 20 N.Y.2d 568 (1967) .................................................................................. passim Matter of Grossman v. Ilowitz, 72 A.D.3d 821 (2d Dep't 2010) .......................................................................... 15 Matter of Eagle Ins. Co. v. Persaud, 1 A.D.3d 356 (2d Dep't 2003) ............................................................................ 24 McLeery v. Wally's World, Inc., 183 Vt. 549, 945 A.2d 841 (2007) ...................................................................... 21 McMahon v. City of New York, 105 A.D.2d 101 (1st Dep't 1984) ................................................................. 30, 31 Nash v. Port Authority of N.Y. & N.J., 51 A.D.3d 337 (1st Dep't 2008) .................................................................. passim New York & Harlem R.R. Co. v. Haws, 56 N.Y. 175 (1874) ............................................................................................. 16 Ohio Cas. Group v. Parrish, 350 So.2d 466 (Fla. 1977) .................................................................................. 21 Oppenheimer v. Westcott, 47 N.Y.2d 595 (1979) ................................................................................... 17, 20 v US_ACTIVE:\44261848\ 15\68050.0049 Patron v. Patron, TABLE OF AUTHORITIES (continued) Page(s) 40 N.Y.2d 582 (1976) ......................................................................................... 12 People v. Bac Tran, 80 N.Y.2d 170 (1992) ......................................................................................... 19 People v. Gallina, 66 N.Y.2d 52 (1985) ........................................................................................... 19 People v. Guay, 18 N.Y.3d 16 (2011) ........................................................................................... 12 Schieck v. Donohue, 81 App.Div. 168 (1st Dep't 1903) ...................................................................... 15 Sears, Roebuck & Co. v. 9 Ave.-31St. Corp., 247 N.Y. 388 (1937) ........................................................................................... 23 Sellers v. General Motors Corp., 735 F.2d 68 (3d Cir. 1984) ................................................................................. 20 Slater v. Am. Mineral Spirits Co., 33 N.Y.2d 443 (1974) ......................................................................................... 23 Standard Oil Co. of Cal. v. United States, 429 u.s. 17 (1976) .............................................................................................. 20 Teitelbaum Holdings Ltd. v. Gold, 48 N.Y.2d 51 (1979) ........................................................................................... 17 U.S. West Comm 'ns, Inc. v. Ariz. Dept. of Revenue, 199 Ariz. 101, 14 P.3d 292 (2000) ..................................................................... 21 Wash. Mut. Bank v. Itzkowitz, 47 A.D.3d 923 (2d Dep't 2008) .......................................................................... 18 VI US_ACTIVE:\44261848\ 15\68050.0049 TABLE OF AUTHORITIES (continued) Woodson v. Mendon Leasing Corp., Page(s) 100 N.Y.2d 62 (2003) .................................................................................. passim In the Matter of World Trade Ctr. Bombing Lit., 17 N.Y.3d 428 (2011) ................................................................................. 4, 5, 10 In the Matter of World Trade Ctr. Bombing Lit., 3 Misc.3d 440 (Sup. Ct. N.Y. Co.), aff'd, 13 A.D.3d 66 (1st Dep't 2004) ..... .4, 5 X.L. 0. Concrete Corp. v. Rivergate Corp., 83 N.Y.2d 513 (1994) ......................................................................................... 20 Yanni v. Bruce Brandwen Prods., Inc., 160 Misc.2d 109 (Civil Ct., N.Y. Co. 1994) ...................................................... 15 Statutes CPLR 2221 ........................................................ ................................................ passim CPLR 5015 ........................................................................................................ passim CPLR 5519(a)(1) ........................................................................................................ 9 CPLR 5602(a)(1)(ii) ................................................................................................... 5 Other Authorities Federal Rule of Civil Procedure 60(b) ..................................................................... 20 Moore's Fed. Prac. (Civil) § 60 App. 105 ............................................................... 21 Siegel, New York Practice (5th ed.) ................................................................. passim Weinstein, Kom & Miller, 10-5015 New York Civil Practice: CPLR ........ 16, 17,27 Vll US_ACTIVE:\44261848\ 15\68050.0049 PRELIMINARY STATEMENT In September 2011, this Court held, as a matter of public policy, that the Port Authority may not be held liable for the 1993 terrorist attack at the World Trade Center ("WTC"). See Appendix ("A.") 22-83 (the "Ruiz appeal"). The Court therefore reversed the sole Appellate Division order establishing liability in favor of all the 1993 WTC bombing plaintiffs, including the Plaintiff-Appellant in this appeal, Linda P. Nash. See Nash v. Port Authority of N.Y. & N.J., 51 A.D.3d 337 (1st Dep't 2008) (the "Liability Order"). Nash actively participated in this Court's review of the Liability Order- with the Port Authority's full consent-because, as she represented to this Court, a reversal of the Liability Order would "deprive her of the rights confirmed to her in the [order]." A. 85. As Nash herself explained, "this Court's disposition of the [Ruiz] appeal ... w[ould] necessarily affect [her] rights, either confirming them or extinguishing them." A. 90. When this Court reversed the Liability Order, the Port Authority exercised its right to seek vacatur of Nash's judgment in the Supreme Court under CPLR 5015 and the court's inherent power. CPLR 5015(a)(5) expressly authorizes vacatur of a judgment in the precise circumstances of this case: when there has been a "reversal, modification or vacatur of a prior ... order upon which [the judgment] is based." The Supreme Court exercised its discretion to vacate the 1 US_ACTIVE:\44261848\ 15\68050.0049 judgment and the Appellate Division affirmed. This Court's review of this exercise of discretion is narrow: It may reverse only if the courts below abused their discretion as a matter of law. Nash's prolix brief on appeal contains only one argument for reversal as a matter of law, which she reprises on virtually every page: She claims that once her judgment became final and direct appeals were exhausted, the judgment could not be vacated under CPLR 5015 or the court's inherent power. This Court's prior decisions, however, expressly and uniformly hold exactly the opposite: The grounds for vacatur set forth in CPLR 5015 survive even final judgment and permit vacatur of a judgment after it has become final and after direct appeals have been exhausted. Numerous Appellate Division decisions confirm and apply these holdings, vacating judgments under CPLR 5015 long after they became final and unappealable. The commentators are all in agreement. So too are the decisions of the United States Supreme Court and other federal appellate courts applying the federal rule on which CPLR 5015 is based. And so are other state high court decisions applying state-law counterparts to CPLR 5015 derived from the same federal rule. In fact, there is not a single authority of any kind that supports Nash's mistaken assertions about CPLR 5015. She relies exclusively on cases concerning a different statute, CPLR 2221, and different grounds for relief than are involved in 2 US_ACTIVE:\44261848\ 15\68050.0049 this case. And she does so despite the widespread, explicit recognition in decisions by this Court and others-including the very cases Nash relies on-that, while CPLR 2221 motions cannot be made after a judgment is final and unappealable, CPLR 5015 motions can be. Nowhere in her 88-page brief did Nash find space even to acknowledge that numerous courts, including this one, have already expressly rejected her argument. Beyond this, Nash fills her brief with false factual assertions, including gross misrepresentations about a short colloquy during oral argument concerning the effect of this Court's ruling on settled cases. None of these misstatements concerns any claimed error of law, and thus none is pertinent to this Court's narrow review in this appeal. In any event, the colloquy about whether "settlements" would be unraveled had no bearing on Nash because her case was never settled. The Port Authority briefly addresses this and some of Nash's other more egregious factual misrepresentations, in order to set the record straight. For these reasons and others that follow, the Court should affirm the order of the Appellate Division. QUESTIONS PRESENTED 1. Did the Supreme Court abuse its discretion as a matter of law by granting the Port Authority's motion to vacate Nash's final judgment pursuant to CPLR 5015(a)(5) and the court's inherent power, where this Court and 3 US_ACTIVE:\44261848\ 15\68050.0049 others have already held that such motions may be granted after a judgment becomes final and after direct appeals are exhausted? 2. Do Nash's factual misrepresentations, including false statements about a colloquy at oral argument, make the Supreme Court's decision erroneous as a matter of law, where these false assertions would not constitute legal error even if true? STATEMENT OF THE CASE A. Joinder of the World Trade Center Cases Following the February 26, 1993 terrorist attack on the World Trade Center ("WTC"), more than 650 plaintiffs filed suit against the Port Authority in 180 lawsuits. One-hundred-seventy-four of these were filed in New York State Supreme Court, in which 293 plaintiffs alleged personal injury, including Nash. All of the actions arising from the WTC attack, including the Nash case, were joined for purposes of liability. See In the Matter of World Trade Ctr. Bombing Lit., 3 Misc.3d 440,442 (Sup. Ct. N.Y. Co.), aff'd, 13 A.D.3d 66 (1st Dep't 2004) ("WTC f'); see also In the Matter of World Trade Ctr. Bombing Lit., 17 N.Y.3d 428, 439 (2011) ("WTC If'). Although the majority of the WTC plaintiffs were represented by a Steering Committee with counsel appointed by the trial court, Nash retained separate counsel throughout the proceedings. WTC I, 3 Misc.3d at 442; WTC II, 17 N.Y.3d at 439. 4 US_ACTIVE:\44261848\ 15\68050.0049 B. The Joint Trial and Verdict on Liability After discovery and the denial of the Port Authority's motion for summary judgment, see WTC I, 3 Misc.3d at 453-54,459-67, aff'd 13 A.D.3d 66 (1st Dep't 2004 ), the Supreme Court conducted a joint trial on liability of all the WTC cases, resulting in a single verdict holding the Port Authority liable to all the plaintiffs, including Nash. See WTC II, 17 N.Y.3d at 440. The Appellate Division's Liability Order rejecting the Port Authority's claim of immunity from the liability verdict was entered on April29, 2008. See Nash v. Port Authority of N.Y. & N.J., 51 A.D.3d 337 (1st Dep't 2008). The individual WTC cases then proceeded separately for determinations of damages. The judgment in the Nash case was entered on January 15, 2010. It explicitly states that it is based on the liability verdict in the joint trial and the Liability Order. A. 117-18. The Port Authority appealed Nash's judgment to the Appellate Division to review an issue related to the calculation of damages. The Appellate Division affirmed the judgment on June 2, 2011. A. 146-47. C. Nash's Participation in the Appeal of the Liability Order On January 20, 2010, a judgment was entered in favor of plaintiff Antonio Ruiz, and the Port Authority requested leave to appeal that judgment directly to this Court pursuant to CPLR 5602(a)(l)(ii) in order to bring up for review the Liability Order. The Port Authority served this leave application on Nash and all 5 US_ACTIVE:\44261848\ 15\68050.0049 of her co-plaintiffs who had not settled their claims.1 This Court granted the Port Authority's leave application on September 16, 2010. Nash actively participated in the Ruiz appeal. Once leave was granted, she asked to be made a respondent in the appeal, arguing in two letters to this Court dated September 29, 2010 and October 5, 2010 that the Port Authority's appeal constituted an "effort to deprive [Nash] of the rights confirmed to her in the [Liability Order]." A. 85. Because the Liability Order bears Nash's name on the caption, she referred to it as the "Nash Decision and Order," and emphasized repeatedly that this order would be reviewed in the Ruiz appeal, see A. 85-87, 90, 92-93, and that the Port Authority was seeking "review ... and reversal ... of the Nash Decision ... that granted Ms. Nash substantial rights adverse to the Port Authority," A. 93. She also understood and acknowledged that her rights against the Port Authority would be controlled by the Court's review of the Liability Order in the Ruiz appeal: "There is and can be absolutely no doubt that this Court's disposition of the [Ruiz] appeal from the Nash Decision and Order will necessarily 1 Nash's assertion that she "was not served" with the leave application is false. Brief for Plaintiff-Appellant ("Nash Br.") 23. She made the same false statement in an earlier letter to this Court, and after being presented with the affidavit of service, she admitted that "copies of [the leave application] were mailed to me," yet she still inexplicably insisted that the motion was not "served ... on me as such." A. 93 n.1. Now she has abandoned even that incoherent distinction and again falsely asserts without caveat that she was "not served." Nash Br. 23. 6 US_ACTIVE:\44261848\ 15\68050.0049 affect Ms. Nash's rights, either confirming them or extinguishing them .... " A. 90. As she later elaborated: To put it more bluntly, on this appeal the Port Authority seeks to alter, reverse directly, two Appellate Division Decisions and Orders ... that granted Ms. Nash substantial rights, adverse to the Port Authority. The result i[t] seeks on this appeal would not merely have an ancillary impact on Decisions and Orders as to which Ms. Nash was and is a party, it would directly impact[] her as a party to those decisions. A. 93 (emphasis in original). In a letter to the Court dated October 5, 2010, the Port Authority agreed with Nash that "a reversal of the [Liability Order] would necessarily affect the rights of the other plaintiffs who are seeking to recover damages on the basis of that ruling, regardless of the current stage of their individual actions." A. 178. And because the Port Authority's appeal of the Ruizjudgment "br[ought] up for review all intermediate orders necessarily affecting the judgment ... including, of course, the [Liability Order]," the Port Authority agreed that Nash should be permitted to participate as an amicus curiae. A. 177; see id. ("The Port Authority does not have-and has never had-any objection to Ms. Nash participating in the appeal as amicus curiae or to Ms. Nash sharing oral argument time with Respondent .... "). Nash, however, was not content to be an amicus in the appeal and repeated her request that she be made a party respondent. A. 92-94 & n.1. On October 19, 2010, this Court granted Nash permission to ''file a respondent's brief ... and 7 US_ACTIVE:\44261848\ 15\68050.0049 participate in oral argument." A. 96. All parties understood at the time that the Court had made Nash a party respondent in the appeal. Nash wrote a further letter stating that the Court had "informed all parties that Ms. Nash is a party respondent on the Port Authority's appeal to this Court of the [Liability Order]." A. 100. She subsequently filed a 102-page "Brief for Plaintiff-Respondent Linda P. Nash," setting forth her arguments for affirmance of the Liability Order and also adopting and incorporating by reference the brief filed on behalf of Ruiz and the Plaintiffs' Steering Committee. Nash's counsel also participated in the initial argument of the Ruiz appeal along with counsel for the Steering Committee and Ruiz. This Court identified Nash as a "respondent" both in its June 23, 2011 order setting the appeal for reargument, see A. 97, and in its calendar for the June 1, 2011 Ruiz argument, see A. 98. Nash's judgment was affirmed by the Appellate Division on June 2, 2011, the day after this Court first heard oral argument in the appeal from the Liability Order. A. 98, 146-47. The Port Authority did not seek leave to appeal Nash's judgment to this Court because it understood that the Court had already made Nash a respondent in the appeal. A. 188-89. And, by that time, Nash had already participated in the Ruiz appeal as a respondent, having filed her "Brief for Plaintiff- Respondent" and having presented oral argument as a respondent. Nash herself believed at the time that she was already a party respondent in the appeal--or at 8 US_ACTIVE:\44261848\ 15\68050.0049 least that is what she represented to this Court. A. 100. Nash did not reverse course until July 18, 2011-after the expiration of the time in which the Port Authority could have sought leave to appeal her judgment to this Court-claiming, contrary to her prior representation, that she was not a respondent in the appeal and informing the Port Authority that she planned to execute the judgment. The Port Authority therefore asked this Court to enforce the automatic stay of execution pending appeal under CPLR 5519(a)(l). A. 179-96. D. This Court's Reversal of the Liability Order Following reargument on August 24, 2011, this Court issued its decision in the Ruiz appeal on September 22, 2011. The Court held that the public policy- based governmental immunity doctrine shielded the Port Authority from liability for the 1993 terrorist attack at the World Trade Center. A. 57 ("[T]he record evinces the type of informed, policy-based decision-making that entitles a governmental agency to immunity. The calamitous and harmful consequences of the 1993 terrorist bombing do not abrogate the principle that discretionary governmental acts may not be a basis of liability."). Accordingly, this Court dismissed the Ruiz complaint and reversed the Liability Order that had established liability in favor of all the 1993 WTC bombing plaintiffs, including Nash. A. 60 ("The judgment appealed from and the order of the Appellate Division brought up 9 US_ACTIVE:\44261848\ 15\68050.0049 for review [i.e., the Liability Order] should be reversed, with costs, and the complaint of plaintiff Antonio Ruiz dismissed."). When it decided the Ruiz appeal, the Court made clear for the first time that Nash had not been a party respondent. In a footnote in the Ruiz decision, the Court stated that although Nash had participated in the appellate proceedings, her "action ... [wa]s beyond the scope of this appeal." WTC II, 17 N.Y.3d at 441 n.7. In a separate order issued the same day, the Court dismissed for lack of jurisdiction the Port Authority's motion to enforce the automatic stay because Nash was not a respondent in the appeal and no leave application was pending. A. 148-49. E. The Motion to Vacate Nash's Judgment Mter the Court ruled that Nash was not a respondent in the appeal, the Port Authority exercised its right to seek discretionary vacatur of Nash's fmal judgment. Two business days after this Court reversed the Liability Order, the Port Authority moved the Supreme Court to vacate Nash's judgment pursuant to both the court's inherent powers and to CPLR 5015(a)(5), which provides in relevant part: "The court which rendered a judgment ... may relieve a party from it ... upon the ground of ... reversal, modification or vacatur of a prior ... order upon which it is based." The Supreme Court vacated the judgment and dismissed Nash's complaint, because this Court's reversal of the Liability Order "insulated [the Port Authority] from tort[] liability," and "eviscerates any judgment, holding 10 US_ACTIVE:\44261848\ 15\68050.0049 or finding of liability involving tort[] liability on behalf of the Port Authority in the 1993 World Trade Center bombing." A. 16. Nash appealed from that order and the Appellate Division affirmed, with two justices dissenting. This appeal followed. ARGUMENT I. THE SUPREME COURT PROPERLY GRANTED THE PORT AUTHORITY'S MOTION TO VACATE THE JUDGMENT CPLR 5015 enumerates grounds on which "[t]he court which rendered a judgment or order may relieve a party from it." These grounds include, among others, "fraud, misrepresentation, or other misconduct of an adverse party," "lack of jurisdiction to enter the judgment," or-as relevant here-"reversal, modification, or vacatur of a prior judgment or order on which it is based." CPLR 5015(a). Because these grounds may arise or come to light at any time, this Court and others have expressly held that CPLR 5015 authorizes vacatur of judgments even after they have become final and direct appeals have been exhausted. See, e.g., Lacks v. Lacks, 41 N.Y.2d 71, 74-76 (1976). A court's authority to grant relief from a judgment is not limited to the grounds identified in CPLR 5015; it may also vacate a final judgment pursuant to its "inherent discretionary power." Woodson v. Mendon Leasing Corp. 100 N.Y.2d 62, 68 (2003). While the Appellate Division reviews an order granting vacatur for abuse of discretion, see id.; see also Maddux v. Schur, 53 A.D.3d 738, 739 (3d Dep't 2008), 11 US_ACTIVE:\44261848\ 15\68050.0049 this Court's review is limited solely to whether the decision below "constitut[ ed] error as a matter of law," Patron v. Patron, 40 N.Y.2d 582, 584 (1976); see Alliance Property Mgmt. and Dev., Inc. v. Andrews Ave. Equities, Inc., 70 N.Y.2d 831, 833 (1987) (where "decisions below ... rested their conclusions on an exercise of discretion," decisions are "reviewable by us only for abuse of discretion as a matter of law"). Accordingly, this Court may not "exercise its own discretion and substitute its judgment for that of the trial court." People v. Guay, 18 N.Y.3d 16, 22 (2011). A. The Supreme Court Unquestionably Possessed Jurisdiction and Authority to Vacate The Final Judgment in Favor of Nash 1. It Is Well-Established that CPLR 5015 Authorizes Vacatur of Final Judgments After Direct Appeals Have Been Exhausted Nash's principal argument-and her only argument asserting error as a matter of law-is that the Supreme Court did not have jurisdiction to vacate her judgment after the judgment became final and unappealable. This Court, however, has already held the opposite: CPLR 5015 "is designed to preserve objections so fundamental to the power of adjudication of a court that they survive even a final judgment or order." Lacks, 41 N.Y.2d at 74-75 (emphasis added). Accordingly, this Court observed in Matter of Huie v. Furman, 20 N.Y.2d 568, 572 (1967) that even "a determination of a court from which no appeal has been taken" may nonetheless be vacated if "the sort of circumstances 12 US_ACTIVE:\44261848\ 15\68050.0049 mentioned in CPLR 5015" are present. The Court applied this rule in Lacks, which involved a CPLR 5015 motion to vacate a judgment after it had been "affirmed by the Appellate Division" and after leave to appeal to this Court had been denied. Lacks, 41 N.Y.2d at 73. "The final judgment was thus beyond further review." Id. But "nearly two years later" the defendant "moved to vacate the judgment" under CPLR 5015(a)(4) on the ground that the trial court lacked subject matter jurisdiction. Id. If Nash's argument in this appeal had any merit, Lacks would have been an easy-and a much different-case. The Court would merely have held that an affirmed ''final judgment ... beyond further review" cannot be vacated under CPLR 5015. But, in fact, the Court held just the opposite. It explained that if CPLR 5015(a)(4) were satisfied, it would ''permit vacatur of a final judgment, collaterally or after final judgment beyond ordinary appellate review." Id. at 76 (emphasis added). While the Court ultimately concluded that CPLR 5015(a)(4) was not satisfied in Lacks (for reasons not relevant here), 2 it left no doubt about the 2 The movant in Lacks had argued that a final judgment of divorce should be vacated under CPLR 5015(a)(4) for want of subject matter jurisdiction, because the durational residency requirement then imposed on divorce actions had not been met. See 41 N.Y.2d at 72. "The issue [was], therefore, whether ... the residence requirements in matrimonial actions, often described as jurisdictional, involve a kind of subject matter jurisdiction without which a court is powerless to render a valid judgment." Id. at 73. The Court held that because subject matter jurisdiction was not involved, "CPLR 5015 (subd [a], par 4) [was] inapplicable, and Special Term erroneously vacated the judgment." Id. at 77. 13 US_ACTIVE:\44261848\ 15\68050.0049 consequences when CPLR 5015's grounds are present: The court that entered the judgment may vacate it after it has become final and after direct appeals are exhausted. Astonishingly, Nash relies heavily on both Lacks and Huie, see Nash Br. 3 n.5, 55-56, 63-64, but never even acknowledges the unambiguous language in both decisions that expressly forecloses her argument.3 Numerous Appellate Division decisions likewise hold that a judgment may be vacated under CPLR 5015 after it has become final and unappealable. See, e.g. Glicksman, 278 A.D.2d at 366 (motion based on "the circumstances set forth in CPLR 5015" or "the court's inherent power to provide relief from a judgment" may be "made after judgment was entered and the time to appeal ha[s] expired"); Levitt v. County of Suffolk, 166 A.D.2d 421, 422 (2d Dep't 1990) ("[A] court of original jurisdiction may entertain a motion to renew or to vacate a prior order or 3 This Court recently confirmed that CPLR 5015 permits vacatur of final judgments in Manhattan Telecommunications Corp. v. H&A Locksmith, Inc.,-- N.E.2d --, 2013 WL 2338405 (May 30, 2013). There, one year after a judgment was entered, a CPLR 5015(a) motion was made to vacate the final, unappealable judgment for want of jurisdiction under CPLR 5015(a)(2). See id. at * 1. Although the Court concluded that there was no jurisdictional defect, it made clear again, as it did in Lacks, that CPLR 5015(a) would have authorized relief from the final judgment if the circumstances provided for in the statute had been present. See id. at * 1-*2 (holding that defect in final judgment was not jurisdictional and accordingly, did not warrant vacatur under CPLR 5015(a)(2)). 14 US_ACTIVE:\44261848\15\68050.0049 judgment [under CPLR 5015(a)(2)] even after an appellate court has affirmed the original order or judgment.").4 Accordingly, the courts have consistently applied CPLR 5015(a)(5)-the sub-section involved in this appeal-to vacate judgments that were final and beyond appellate review, in some instances years after the litigation had ended. See, e.g., Matter of Grossman v. Ilowitz, 72 A.D.3d 821, 822 (2d Dep't 2010) (final judgment vacated two years after entry under CPLR 5015(a)(5)); Dupkanicova v. James, 17 A.D.3d 627, 628 (2d Dep't 2005) (final order vacated more than two years after entry under CPLR 5015(a)(5)).5 As Professor Siegel explains, where, as here, a final judgment is based on a prior order that "has been vacated or reversed or otherwise undone," the judgment "is of course divested of its finality 4 See also Jennings v. Doyle, 263 App. Div. 488,489 (3d Dep't 1942) ("Since it is never too late to do justice, the Special Term, in the exercise of its discretion, may grant [relief from a judgment], even after this court's disposition of the appeal." (citation and internal quotation marks omitted)); Schieck v. Donohue, 81 App. Div. 168 (1st Dep't 1903) ("If the plaintiff proceeded upon an interlocutory judgment and obtained a final judgment based upon it, ... that fmal judgment is subject to be set aside upon a reversal of the interlocutory judgment upon which it was based."). 5 See also Aces Mech. Corp. v. Cohen Bros. Realty & Constr. Corp., 136 A.D.2d 503, 505 (1st Dep't 1988) (unappealed final judgment should have been vacated when the judgment on which it was based was reversed); Allen v. Murphy, 45 A.D.2d 693, 694 (1st Dep't 1974) (vacating final order); Feldberg v. Howard Fulton St., Inc., 44 Misc.2d 218, 219-20 (Sup. Ct., Kings Co. 1964) (vacating dismissal of third-party complaint based on reversal of order dismissing plaintiff's complaint), aff'd, 24 A.D.2d 704 (2d Dep't 1965); Yanni v. Bruce Brandwen Prods., Inc., 160 Misc.2d 109 (Civil Ct., N.Y. Co. 1994) (vacating summary judgment order entered over five years earlier based on reversal of administrative determination on which order was based). 15 US_ACTIVE:\44261848\ 15\68050.0049 and the remedy to cancel the second judgment is a motion to vacate it." Siegel, New York Practice§ 444 (5th ed.) (emphasis added) (citing CPLR 5015(a)(5)). 2. CPLR 5015 Was Designed Specifically to Provide Relief from a Final Judgment After a Case Has Terminated CPLR 5015 reflects a legislative determination that the interest in a judgment's finality is sometimes outweighed by subsequent events or newly discovered circumstances that affect the judgment. See Weinstein, Kom & Miller, 10-5015 New York Civil Practice: CPLR at 15015:00 ("WKM") (explaining "Procedural Context of CPLR 5015": "A primary requirement of any legal system is certainty and finality in order to ensure stable, reliable judicial decisions. At the same time, a legal system needs to provide the appropriate mechanism to correct a . d ") JU gment ..... New York has long recognized that even final, unappealable judgments may be set aside under appropriate circumstances.6 Prior to the enactment of CPLR 5015, the principal vehicle to obtain relief from a final judgment was an independent plenary action. See WKM 15015.13; e.g., New York & Harlem R.R. Co. v. Haws, 56 N.Y. 175 (1874). And even today, "a plenary action may lie in 6 The courts of this State have always possessed-and still possess-inherent authority to re-open a final judgment. See Ladd v. Stevenson, 112 N.Y. 325, 332 (1889) ("[l]n the exercise of its control over its judgments it may open them upon the application of anyone for sufficient reason, in the furtherance of justice. Its power to do so does not depend upon any statute, but is inherent, and it would be quite unfortunate if it did not possess it to the fullest extent."). 16 US_ACTIVE:\44261848\ 15\68050.0049 some rare instances to set aside a prior judgment," James v. Shave, 62 N.Y.2d 712, 714 (1984), but there is generally no need for this burdensome procedure because CPLR 5015 provides for relief from a final judgment by motion within the original action. See Oppenheimer v. Westcott, 47 N.Y.2d 595, 603 (1979) ("CPLR 5015 ... was intended ... to minimize the necessity for use of independent procedures of collateral attack upon a judgment."). The availability of this post-judgment relief does not mean there is "never finality, or res judicata, in any action." Nash Br. 62. Rather, it merely recognizes that there are circumstances that may arise or come to light after entry of a final judgment that are sufficiently important that they warrant granting relief from the judgment. As this Court previously observed, the "practical notion that there must ultimately be an end to litigation ... has been substantially eroded," and today there are "[n]umerous postjudgment remedies ... available to litigants upon a properly interposed motion. That the existence of these motions has produced no untoward consequences to our jurisprudential scheme is manifest." Teitelbaum Holdings Ltd. v. Gold, 48 N.Y.2d 51, 55 (1979) (citing CPLR 5015). 3. If CPLR 5015(a)(5) Did Not Apply to Final Judgments, It Would Be Completely Superfluous The ability to obtain relief from a judgment after it has become final and unappealable is not incidental to CPLR 5015; it is the signature characteristic of this provision. E.g., WKM, at <][5015.15 (CPLR 5015 sets out "the procedure for 17 US_ACTIVE:\44261848\15\68050.0049 setting aside a final judgment"). As this Court and others have repeatedly explained, this characteristic distinguishes motions under CPLR 5015 or the court's inherent power from other procedural vehicles to undo a prior determination, such as motions to renew under CPLR 2221. See James, 62 N.Y.2d at 714 ("[A] motion to vacate [a] prior judgment ... would be made pursuant to CPLR 5015, not CPLR 2221."); Maddux v. Schur, 83 A.D.3d 1156, 1157 (3d Dep't 2011) ("[A] motion to renew pursuant to CPLR 2221 is not the proper procedural vehicle to address a final judgment and Supreme Court properly treated plaintiff's motion as a motion pursuant to CPLR 5015."); Matter of McCabe v. Bd. of Appeals, 31 A.D.3d 451,452 (2d Dep't 2006) ("As a judgment dismissing a CPLR article 78 petition is a final judgment terminating the proceeding, the petitioner should have moved for relief pursuant to CPLR 5015 and not by way of ... CPLR 2221."); Wash. Mut. Bank v. Itzkowitz, 47 A.D.3d 923, 923 (2d Dep't 2008) ("After entry of a final judgment, a motion for leave to renew pursuant to CPLR 2221(e)(2) ... must be made, absent circumstances set forth in CPLR 5015, before the time to appeal the final judgment has expired." (emphasis added)).7 Because it permits vacatur of a judgment after a case has terminated, CPLR 5015's grounds for relief are narrower than the grounds needed for reargument or 7 See also, e.g., CPLR 2221 Practice Commentaries, Subdivision (e) ("Mter a final judgment has been entered, a party can still resort to CPLR 5015(a)(2) and move for relief from the judgment .... "). 18 US_ACTIVE:\44261848\ 15\68050.0049 renewal under CPLR 2221. For example, any "intervening change in the law" may result in renewal of a prior determination under CPLR 2221(e). Siegel, N.Y. Prac. § 254. But a mere change in decisional law is not sufficient to vacate a judgment under CPLR 5015(a)(5). See, e.g., Jericho Union Free Sch. Dist. No. 15 v. Board of Assessors, 131 A.D.2d 482,483 (2d Dep't 1987) ("Where a decision provides the precedent for a later determination but does not have res judicata or collateral estoppel effect with respect to the subsequent determination, the later reversal of the prior decision does not provide a basis for relief under CPLR 5015(a)(5)."). Rather, CPLR 5015(a)(5) applies where, as here, there is a reversal of the very order on which the judgment is based. If CPLR 5015(a)(5) did not apply after final judgment and the exhaustion of direct appeals, it would be completely superfluous.8 It would then be applicable only at the same stage of proceedings as CPLR 2221 would be. But any time CPLR 5015(a)(5)'s narrower grounds for vacatur were present, the broader grounds of CPLR 2221(e) would be present also. Thus, no one would ever have reason to make a motion under CPLR 5015(a)(5), because CPLR 2221(e), and its 8 1t is well-established that courts should not interpret statutory language in a manner that renders it useless or superfluous. See McKinney's Statutes § 231 ("In the construction of a statute, meaning and effect should be given to all its language, if possible, and words are not to be rejected as superfluous when it is practicable to give to each a distinct and separate meaning."); People v. Bac Tran, 80 N.Y.2d 170, 176 (1992); People v. Gallina, 66 N.Y.2d 52, 56 (1985). 19 US_ACTIVE:\44261848\ 15\68050.0049 more expansive grounds for relief, would always be available instead. But, as this Court explained, the Legislature "designed" CPLR 5015 for a reason: to preserve objections to a judgment "so fundamental" that they survive finality and the exhaustion of direct appeals. Lacks, 41 N.Y.2d at 74, 76. 4. CPLR SOlS's Federal Counterpart and Parallel Provisions in Sister States Confirm that CPLR SOlS Applies to Vacate Final, Unappealable Judgments The availability of relief from a final, unappealable judgment is not unique to New York. Federal Rule of Civil Procedure 60(b)-on which CPLR 5015(a)(5) is based, and with which it should be interpreted consistently9-also allows vacatur of a fmal judgment even after it has been affirmed on appeal, as the United States Supreme Court and other federal appellate courts have held.10 The federal rule is itself derived from the common law writ of audita querela, which likewise 9 See Oppenheimer, 47 N.Y.2d at 603 (CPLR 5015 "is based upon the parallel wording of [Federal R]ule 60."); Matter of Commercial Structures, Inc., v. City of Syracuse, 97 A.D.2d 965, 966 (4th Dep't 1983) (finding that "the New York rule [CPLR 5015] was intended to be similarly applied [to the Federal rule]"); X.L.O. Concrete Corp. v. Rivergate Corp., 83 N.Y.2d 513, 518 (1994) (when a New York rule or statute was modeled on federal law, federal decisions interpreting that law should be followed by New York courts). 10 See Standard Oil Co. of Cal. v. United States, 429 U.S. 17, 18 (1976) (Rule 60(b) authorized district court to set aside final judgment that had been affirmed by Supreme Court); Sellers v. General Motors Corp., 735 F.2d 68, 69 (3d Cir. 1984) ("Our affirmance ... did not limit the power of the district court to consider Rule 60(b) relief."); FDIC v. United Pacific Ins. Co., 152 F.3d 1266, 1272-74 (lOth Cir. 1998) ("[A] district court may consider a Rule 60(b) motion to reopen a decision that has been affirmed on appeal."). 20 US_ACTIVE:\44261848\15\68050.0049 permitted relief from a judgment "after the appellate mandate had gone down in the original proceeding." See Moore's Fed. Prac. (Civil) § 60 App. 105. State high court decisions interpreting counterpart laws similarly based on the federal rule-which incorporate the same grounds for vacatur as CPLR 501511-are in accord. 12 This unanimity is no accident. To hold otherwise, as Nash urges, would - yield absurd results. A final judgment could not be set aside even if it had been procured by fraud. A final judgment based solely on res judicata could not be undone even if the prior order that had been given preclusive effect was itself overturned. A final judgment the court had no subject matter jurisdiction to enter could never be rectified. For good reason, New York, like the federal government and other jurisdictions, has long recognized that final judgments that have been affirmed on appeal and are beyond further appellate review may be vacated under CPLR 5015 or the court's inherent power. 5. Nash's Argument Finds No Support From any Precedent or Authority Concerning CPLR 5015 11 See, e.g., Vt. R. Civ. P. 60(b); K.S.A. 60-260(b). 12 See, e.g., McLeery v. Wally's World, Inc., 183 Vt. 549, 550-51, 945 A.2d 841, 844-45 (2007); U.S. West Comm'ns, Inc. v. Ariz. Dept. of Revenue, 199 Ariz. 101,103-04, 14 P.3d 292, 294-95 (2000); Jones v. Smith, 5 Kan.App.2d 352, 353- 54, 616 P.2d 300, 302 (1980); Ohio Cas. Group v. Parrish, 350 So.2d 466,468-69 (Fla. 1977). 21 US_ACTIVE:\44261848\ 15\68050.0049 Nash has no response to this overwhelming weight of authority so she ignores it or egregiously misrepresents it. She begins her argument, remarkably, with Lacks. Observing that the judgment there was final, she quotes the Court's statement-made after determining that CPLR 5015 was not satisfied13-that the exhaustion of direct appeals "is and should be the end of the matter." Nash Br. 55. But Nash does not even mention the analysis in Lacks that pertains to this appeal- i.e., the Court's explanation that when CPLR 5015's grounds for vacatur are satisfied, they "survive even a final judgment" and "permit vacatur of a final judgment, collaterally or after final judgment beyond ordinary appellate review." Lacks, 41 N.Y.2d at 74-75, 76. Similarly, Nash quotes the observation in Lacks that vacating final judgments in cases that "do not involve" a ground identified in CPLR 5015 would ''undermine significantly the doctrine of res judicata," Nash Br. 56, but she ignores the Court's express statement that satisfying CPLR 5015(a)(4) has "grave consequences, including denial of res judicata effect to judgments," Lacks, 41 N.Y.2d at 75. Nash then sets out a lengthy discussion of cases she describes as an "unbroken line of decisions of this Court that require the reversal of the decision below." Nash. Br. 56-66, 61. But all these cases share a common characteristic that readily distinguishes them from this case: They all concern CPLR 2221 13 See supra n.2. 22 US_ACTIVE:\44261848\ 15\68050.0049 motions, rather than CPLR 5015 motions.14 Indeed, to the extent the cases Nash relies on mention CPLR 5015 at all, they expressly reject her argument, as when this Court stated in Huie that final, unappealed judgments are "inviolate" "[ a]bsent the sort of circumstances mentioned in CPLR 5015." Huie, 20 N.Y.2d at 572 (emphasis added). Nash deals with this language the only way she can: She pretends it does not exist. In fact, Nash does not quote any language concerning CPLR 5015 from any decision until page 85 of her brief, where she includes the following passage making clear that a final, unappealable judgment can indeed be vacated when CPLR 5015's grounds are satisfied: None of the circumstances set forth in CPLR 5015, nor circumstances which would warrant the exercise of the court's inherent power to provide relief from a judgment are present here. Consequently, because the plaintiffs' motion was made after judgment was entered and the time to appeal had expired, it should have been denied as untimely. Nash Br. 85 (quoting Glicksman, 278 A.D.2d at 366). But even after finally setting out the relevant language in one case, she still does not acknowledge it or make any attempt to address it. 14 The cases Nash relies on that concern CPLR 2221 motions-not CPLR 5015 motions-include, among others: Bray v. Cox, 38 N.Y.2d 350 (1976); Slater v. Am. Mineral Spirits Co., 33 N.Y.2d 443 (1974); Huie, 20 N.Y.2d at 568; Deeves v. Fabric Fire Hose Co., 19 A.D.2d 735 (2d Dep't 1963), aff'd, 14 N.Y.2d 633 (1964); Sears, Roebuck & Co. v. 9 Ave.-31St. Corp., 247 N.Y. 388 (1937). 23 US_ACTIVE:\44261848\ 15\68050.0049 Instead, Nash quotes long passages that relate exclusively to CPLR 2221 motions to set aside judgments based on changes in decisional law emanating from unrelated cases-a different statute and different ground for vacatur than are involved here, where there has been a reversal of the very order upon which the judgment is based. See Nash Br. 55-64. And Nash does so despite the widespread, explicit recognition that CPLR 2221 motions cannot be made after a judgment is final and unappealable, but CPLR 5015 motions can be. See, e.g., Glicksman, 278 A.D.2d at 366; Wash. Mut. Bank, 47 A.D.3d at 923; Matter of Eagle Ins. Co. v. Persaud, 1 A.D.3d 356, 357 (2d Dep't 2003). Nash's other arguments for reversal all depend on the same mistaken premise that CPLR 5015 motions cannot be made after a judgment becomes final and unappealable. She claims, for example, that ''the 30 day time period for filing a notice of appeal is jurisdictional and nonwaivable," Nash Br. 65,15 and that by not seeking leave to appeal to this Court the Port Authority "abandon[ ed] ... all claims of error," id. at 68. But the Port Authority's motion to vacate was not an appeal, and it did not require the Supreme Court to consider any "claims of error," as an appellate court would do. In fact, an appellate court cannot even address a 15 See also Nash Br. 63, 65-68. Once again, Nash is unable to cite even a single case concerning CPLR 5015 in support of her contentions. See, e.g., Haverstraw Park, Inc. v. Runcible Props. Corp., 33 N.Y. 637 (1973) (discussing CPLR 2221 motion) (quoted at Nash Br. 65). 24 US_ACTIVE:\44261848\ 15\68050.0049 motion to vacate in the first instance; only the court that entered the judgment may do so. See CPLR 5015(a) ("The court which rendered a judgment or order may relieve a party from it .... "). Because vacatur motions are not appeals, they are not subject to the time limitations applicable to appeals, as Nash mistakenly argues. Indeed, "[t]here is no stated time limit on a vacatur motion under CPLR 5015(a)(5)." Siegel, N.Y. Prac. § 431 (emphasis added). Accordingly, CPLR 5015 motions may be "made long after a judgment has been rendered"-so long, in fact, that "there may be doubt as to whether the former attorney still represents the client," id. § 248 n.3, "or for that matter, is still alive," CPLR 5015, Practice Commentaries, Subdivision (a) C5015:2. For much the same reasons, Nash is incorrect when she claims that the lower courts gave the Ruiz decision "retroactive application" because "the appellate process in Ms. Nash's case had ended." Nash Br. 69, 71. There is nothing retroactive about applying CPLR 5015(a)(5) to vacate a final judgment. The statute, by design, remains applicable to judgments long after they have become final and direct appeals have been exhausted. See supra I.A.1. In this case, the Port Authority made its vacatur motion just two business days after the grounds for vacatur arose. Nash also misplaces her repeated reliance on this Court's statement that her case was "beyond the scope of [the Ruiz] appeal," and on the Court's order holding 25 US_ACTIVE:\44261848\ 15\68050.0049 that it did not have jurisdiction over a motion to enforce an automatic stay of Nash's judgment. See Nash Br. 8, 9, 10, 11, 14-15,45,46,73,77-78. This statement and order concerned the Court's appellate jurisdiction at the time the Ruiz decision was issued. Contrary to Nash's contentions, this Court never addressed the wholly separate question whether jurisdiction would lie in the lower courts over a motion to vacate the judgment under CPLR 5015 and the court's inherent power-a question that, at the time, had not been presented to this Court and which the Court therefore had no occasion to consider.16 16 In any event, having repeatedly represented that she was and should be treated as a party respondent-and not merely as an amicus as the Port Authority requested-and having prevailed in that position and having been treated and having participated in the briefing and oral argument as a party respondent, and having then waited until after the Port Authority's time to seek leave to appeal her judgment had expired before suddenly reversing her position, Nash is precluded by principles of both judicial and equitable estoppel from advancing this legally erroneous argument. See Edson v. Southold Town Zoning Bd. of Appeals, 102 A.D.3d 687, 688 (2d Dep't 2013) ("The doctrine of judicial estoppel precludes a party from taking a position in one legal proceeding which is contrary to that which he or she took in a prior proceeding, simply because his or her interests have changed." (internal quotation marks omitted)); Environmental Concern, Inc. v. Larchwood Const. Corp., 101 A.D.2d 591, 593 (2d Dep't 1984) (holding that "litigant should not be permitted to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise" (internal quotation marks omitted)); Siegel N.Y. Prac. § 443 (equitable estoppel is "the doctrine of estoppel against inconsistent positions"). 26 US_ACTIVE:\44261848\ 15\68050.0049 B. The Supreme Court Did Not Abuse Its Discretion As A Matter of Law in Granting the Port Authority's Motion under CPLR 5015 Other than her mistaken contention that the Supreme Court lacked jurisdiction to vacate her judgment, Nash makes no independent argument that the Supreme Court abused its discretion as a matter of law. See Nash Br. 80-86. And for good reason: The court acted well within its discretion because CPLR 5015 expressly permits vacatur of a judgment in the precise circumstances of this case: when there is a "reversal, modification or vacatur of a prior ... order upon which [the judgment] is based." CPLR 5015(a)(5). "CPLR 5015 is liberally construed and applied," WKM at'][ 5015.02, and even then it "does not provide an exhaustive list" of the permissible grounds for vacatur, Woodson, 100 N.Y.2d at 68. But there is no need construe the statute broadly or to look beyond its express terms in this case: Nash's judgment was indisputably based on the singular liability determination in favor of all the 1993 WTC bombing plaintiffs, and once that Liability Order was reversed, CPLR 5015(a)(5) expressly authorized the Supreme Court to vacate Nash's judgment. Numerous decisions by this Court and the Appellate Divisions recognize this well- established authority, 17 and the lower courts regularly vacate final judgments on this ground, see supra n.5. 17 See, e.g., Halpern v. Amtorg Trading Corp., 292 N.Y. 42, 48 (1944) ("It is plain that a judgment based solely on a prior adjudication which has been reversed 27 US_ACTIVE:\44261848\ 15\68050.0049 Nash's judgment expressly states that it is based on the Liability Order that was reversed in Ruiz. A. 117-18. Nash herself has repeatedly confirmed this fact in multiple prior representations to this Court. See supra at 5-9. Among other things, she has explained that "the Decision and Order of the Appellate Division that will be reviewed on this appeal ... established [Nash's] rights to relief that the Port Authority is now asking this Court to take away." A. 90. And she acknowledged that "[t]here is and can be absolutely no doubt that this Court's disposition of the [Ruiz] appeal from the Nash Decision and Order [i.e., the Liability Order] will necessarily affect Ms. Nash's rights," id., and that a reversal in Ruiz would "would directly impact[] her as a party to those decisions," A. 93. The Port Authority fully agreed, and therefore consented to Nash's request to participate in the Ruiz appeal. A. 177-78. Nash cannot and does not assert otherwise. She contends that this Court did not reverse the Liability Order "in Ms. Nash's case" because she was not a respondent in the Ruiz appeal, and she reiterates her claim that the Supreme Court did not have "subject matter jurisdiction over Ms. Nash's affirmed Final Judgment." Nash Br. 82, 84. But she misses the point. The relief available under CPLR 5015(a)(5) does not in any way depend upon Nash having been a party thereafter cannot stand."); CT Chems. (U.S.A.) Inc. v. Vinmar Impex, Inc., 198 A.D.2d 727, 729 (1st Dep't 1993) ("It is axiomatic that the reversal (i.e., vacatur) of an order invalidates a judgment entered pursuant to such order."). 28 US_ACTIVE:\44261848\ 15\68050.0049 respondent in the Ruiz appeal. When this Court reversed the Liability Order in favor of all the 1993 WTC bombing plaintiffs, CPLR 5015(a)(5) authorized the Supreme Court, in its discretion, to vacate any final judgment based on that order. C. The Supreme Court Did Not Abuse Its Discretion As a Matter of Law in Granting the Port Authority's Motion Pursuant to Its Inherent Power to Grant Relief from a Judgment It Entered Even if this case did not fall squarely within the purview of CPLR 5015(a)(5), vacatur would still have been properly granted as an exercise of the Supreme Court's inherent power. The statutory grounds are not exhaustive, and "[s]hould a ground arise not expressly listed ... and not susceptible, even with a little push, of being lodged under a listed ground," "[t]he court has inherent discretionary power to vacate its judgments and orders for good cause shown, not limited by the CPLR 5015(a) list." Siegel, N.Y. Prac. § 426; see Woodson, 100 N.Y.2d at 68 ("In addition to the grounds set forth in section 5015(a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice. As one commentator has noted, it might have been more elegant to add an additional paragraph to CPLR 5015(a) as a kind of catchall category, but the intent seems clear enough without it." (internal quotation, citation, and alteration omitted)). The circumstances here do not require even a "little push" to fit within the grounds listed in CPLR 5015(a). But even if they fell outside the statute entirely, 29 US_ACTIVE:\44261848\ 15\68050.0049 there still would be "sufficient reason" to vacate Nash's judgment. This litigation was long and, at times, contentious, but in the end this Court held that the Port Authority has a public policy-based immunity from liability for the 1993 terrorist attack. Nash actively participated in every stage of the litigation, including the trial resulting in the joint liability verdict and the appeal resulting in the Liability Order bearing her name that this Court reversed. And Nash vigorously defended that Liability Order in this Court, filing a 102-page brief and presenting oral argument, because she knew that a reversal of the Liability Order would extinguish her rights. She used every opportunity to attempt to impose liability on the Port Authority. A. 90. But now that this Court has reversed the Liability Order, she claims that this Court's ruling has no effect on her-despite her own previous acknowledgments to the contrary. A. 90, 93. The drafters of CPLR 5015 "intended that courts retain and exercise their inherent discretionary powers in situations that warranted vacatur but which the drafters could not easily foresee." Woodson, 100 N.Y.2d at 68. Even if sub-section (a)(5) had been omitted from the statute, this would be such a situation. In McMahon v. City of New York, 105 A.D.2d 101 (1st Dep't 1984), the First Department vacated a judgment pursuant to the court's inherent power in circumstances similar to those here. Like this case, McMahon concerned an 30 US_ACTIVE:\44261848\ 15\68050.0049 explosion that resulted in multiple lawsuits that were the subject of a joint liability trial, resulting in a liability verdict that was affirmed by the Appellate Division. After this Court reversed that liability order in an appeal from one plaintiff's judgment, the Appellate Division vacated the judgment of another plaintiff seeking damages from the same explosion: "This is an appropriate case for the exercise of the court's inherent power in the furtherance of justice, not to let a judgment stand which should never have been rendered." Id. at 106. The same is true here. Even putting aside the grounds for vacatur listed in CPLR 5015(a), this Court's reversal of the Liability Order establishes that Nash's judgment "should never have been rendered," and the Supreme Court had inherent power to vacate it. Nash makes virtually no argument to the contrary. She declares that the courts below did not exercise their inherent power in this case, see Nash Br. 86, but that is incorrect. The Port Authority's motion was made pursuant to both the court's inherent power and CPLR 5015, and the Supreme Court granted the motion without specifically mentioning either ground in its decision. Nash's only other argument concerning the court's inherent power is to repeat the erroneous assertion that the lower courts lacked "subject matter jurisdiction" over the Port Authority's motion. Id. at 86. She sets forth a lengthy and thoroughly confused discussion of McMahon that she believes supports this assertion, id. at 72-77, but since the Supreme Court clearly had jurisdiction over the Port Authority's motion, see supra 31 US_ACTIVE:\44261848\ 15\68050.0049 I.A., it properly exercised its inherent power to grant relief from the judgment it entered. II. NASH'S REMAINING ASSERTIONS WOULD NOT CONSTITUTE ERROR AS A MATTER OF LAW AND ARE FALSE IN ANY EVENT Nash's sole argument that the courts below erred as a matter of law is her mistaken contention that a judgment cannot be vacated after it becomes final and direct appeals have been exhausted. Because this contention is plainly wrong, and because this Court's review is limited exclusively to error as a matter of law, the Court need not consider any of Nash's other assertions. Nevertheless, the Port Authority addresses below some of Nash's most egregious and most frequently repeated misrepresentations, to clear up some of the confusion Nash has attempted to create. A. The Port Authority's Acknowledgement at Oral Argument that "Settlements" Would Not Be "Unraveled" by a Reversal of the Liability Order Has No Bearing on Nash's Case, Which Was Never Settled In a short, unremarkable exchange during oral argument of the Ruiz appeal, Judge Ciparick asked counsel for the Port Authority whether "settlefdl" cases would be ''unravel[ed]" by a reversal of the Liability Order. Counsel responded that they would not. And, lest there be any doubt, settled cases are the only ones that counsel agreed would be unaffected. The full colloquy follows: 32 US_ACTIVE:\44261848\ 15\68050.0049 (Judge Ciparick): If we were able to rule in your favor this would not unravel the twenty or so, whatever settlements that have been made in the past? (Counsel for the Port Authority): No. (Judge Ciparick): Future cases, cases that are still in the pipeline. (Counsel for the Port Authority): Well, it would affect cases that are still in the pipeline. (emphasis added). Because Nash's case indisputably was never settled, counsel's agreement that "settlements" would not be ''unraveled" obviously does not pertain to Nash.18 Nash, however, strenuously argues to the contrary. To make this argument, she falsifies the exchange so flagrantly and unabashedly that it is startling even when measured against her other overzealous advocacy. In her most basic prevarications, Nash replaces the word "settlements" with "judgments" or "final dispositions" to make the conversation relate to a different group of cases than were actually discussed. See, e.g., Nash Br. 9 (counsel "represented" that "a reversal would not 'unravel' judgments made earlier"); id. at 42-43 ("Judge Ciparick asked ... [if] a reversal [would] 'unravel' any final dispositions in any of the other 1993 Bombing cases"). At other points, she goes 18 As Nash herself explains, see Nash Br. 20, after a settlement the right to receive payment arises under contract not under a judicial determination of liability, so reversal of a liability ruling does not undermine a settlement. 33 US_ACTIVE:\44261848\ 15\68050.0049 further and fabricates a conversation that dealt specifically with her case. See, e.g., id. at 7 ("Judge Ciparick ... asked ... if a reversal ... would ... 'unravel' decisions in cases like Ms. Nash's"); id. at 42 ("The Port Authority Admitted That It Could Not 'Unravel' Ms. Nash's Affirmed Final Judgment"). In still another variation, Nash falsely inserts the word "only" into counsel's statement that "cases in the pipeline" would be affected by reversal, and then asserts that her case was not "in the pipeline." See, e.g., id. at 43 ("[T]he Port Authority's attorney ... admitted ... that any reversal ... would apply only to cases that were still 'in the pipeline"'). But, as even Nash's transcription of the actual conversation shows, see id. at 44, counsel never said that cases "in the pipeline" were the only cases that would be affected, nor did he address the consequences of reversal for any other category of cases apart from "settlements." Thus, even if Nash were right that her case was not "in the pipeline," the most that would follow is that the innocuous exchange about "settlements" and cases "in the pipeline" had nothing to do with her. That is why, despite invoking this colloquy more than twenty times in her brief, Nash never once tries to argue that the actual words spoken between Judge Ciparick and counsel had any bearing on Nash's case. Instead, she invents a different conversation that never took place and never would have, and then alludes to this fiction over and over again in the hope that it will displace the actual conversation. 34 US_ACTIVE:\44261848\ 15\68050.0049 Nash's brazen falsification of the colloquy at oral argument is not the only reason this Court should disregard her emphatic reliance on it. That discussion- indeed, even Nash's counterfactual version of it-could not make the lower courts' exercise of discretion in vacating the judgment erroneous as a matter of law, and thus could not provide a ground for this Court to reverse those decisions. Nash never suggests otherwise. In fact, Nash makes no legal argument whatsoever about the much-ballyhooed questioning by Judge Ciparick. The "Argument" section beginning at page 53 of her brief contains many sub-points, but every one of them stems from the same false premise that a final, unappealable judgment cannot be vacated under CPLR 5015. She does not and could not argue that a short discussion at oral argument somehow made CPLR 5015 inapplicable. B. This Court Reviewed the Liability Claim Made by Nash and All Her Co-Plaintiffs on the Merits and Nash Actively Participated in that Review, with the Port Authority's Full Consent Another falsehood repeated throughout Nash's brief is that the Port Authority had a "litigation strategy of precluding this Court from ever reviewing Ms. Nash's claim on its merits." Nash Br. 25 (emphasis in original); see also id. at 2, 4, 36-38, 62, 64, 67, 79. In fact, the Port Authority always agreed that she should be allowed to participate in the appeal; she did fully participate; and the Court did review Nash's claim of liability on the merits. See, e.g., A. 177-78. 35 US_ACTIVE:\44261848\ 15\68050.0049 There was one-and only one-liability trial in the 1993 WTC bombing cases, resulting in one liability verdict in favor of all plaintiffs, which was affirmed by one Appellate Division order. As Nash herself explains, she was separately represented in both the joint liability trial and the appeal. See Nash Br. 19-20; A. 88-89. Accordingly, Nash had a full opportunity to create a factual record and to present legal argument that the Port Authority should be held liable for the terrorist attack. Any and all claims of liability asserted by Nash (and her co-plaintiffs) in this litigation are based solely on the record of the joint liability trial and on the legal theories that this Court ultimately rejected. Different plaintiffs had individualized claims for damages, but no plaintiff-not Nash, Cantor Fitzgerald, or anyone else-had a distinct or individualized claim for liability. No one explained this better than Nash herself. In her September 29, 2010 letter to this Court, she explained that the order to be reviewed in the Ruiz appeal provided the basis for liability in Nash's case: "[O]n this appeal the Port Authority seeks to alter, reverse directly, ... Decisions and Orders in which Ms. Nash was an actual party ... that granted Ms. Nash substantial rights .... " A. 93. And Nash expressly represented to this Court-even before she was permitted to participate in the Ruiz appeal-that her claim of liability was already under review: "[T]he particulars of [Nash's] liability claim ... are in the Record on which the Port Authority is pursuing this appeal." A. 94. Only now that the Court has reversed 36 US_ACTIVE:\44261848\ 15\68050.0049 the Liability Order, has Nash asserted the opposite: "Ms. Nash does not know how this Court would have answered the questions raised by her case that were not before it on the Ruiz appeal." Nash Br. 36-37. As Nash well knows, however, there were no distinct liability questions raised in her case. The liability issue turned on an interpretation of the governmental immunity doctrine and on the Port Authority's conduct prior to the bombing-not on the circumstances of any particular plaintiff. Nash's assertion that she was "precluded" from this Court's review of the Liability Order is particularly spurious because she actually did participate in the appeal in which that order was reversed. She filed a 102-page brief in the Ruiz appeal, in which she had ample opportunity to make any and all arguments that she believed supported liability. The Court considered all those arguments and ultimately a majority of the Court disagreed with them. The Port Authority never opposed Nash's participation in the liability appeal. It served Nash with its leave application, see supra n.1, and after the Court granted leave to appeal and Nash requested permission to participate, the Port Authority promptly consented to her request: "The Port Authority does not have- and has never had-any objection to Ms. Nash participating in the appeal as amicus curiae or to Ms. Nash sharing oral argument time with Respondent .... " A. 177. Nash frequently cites the portion of this letter expressing the Port 37 US_ACTIVE:\44261848\ 15\68050.0049 Authority's understanding that Nash would be an amicus rather than a respondent, see, e.g., Nash Br. 31, but she never acknowledges that the Port Authority expressly consented to her participation in the appeal and thus obviously did not have a "strategy" to "preclude" her from the appeal. When this Court notified the parties that Nash could "file a respondent's brief," A. 96, the Port Authority understood that the Court had ruled that Nash would be a party respondent (as she had argued) rather than an amicus. Nash believed the same thing. A. 100 (the Court "informed all parties that Ms. Nash is a party respondent on the Port Authority's appeal"). The Court likewise referred to Nash as "respondent" in both its June 23, 2011 reargument order and its June 1, 2011 argument calendar. A. 97, 98. Accordingly, the Port Authority did not file a separate leave application in July 2011 to make Nash a respondent in the appeal because it understood that she already was a respondent. A. 188-89. Nash, however, asserts that the Port Authority did not ftle a leave application because it "concluded that Ms. Nash's claim presented the worst case it could put before this Court and created the greatest risk it would lose." Nash Br. 37-38. This is ludicrous. Nash's claim of liability (as opposed to damages) was exactly the same as every other WTC bombing plaintiffs claim. And at the time a leave application would have been due in July 2011, Nash had already presented her 38 US_ACTIVE:\44261848\15\68050.0049 claim to this Court in both briefing and oral argument, with the Port Authority's full consent. Even if Nash's representations about a "strategy" to "preclude" her were truthful, they would not make the decisions below erroneous as a matter of law. But, in any event, they are not truthful. Far from excluding Nash, the Port Authority agreed all along that Nash should be permitted to participate in the appeal, because it was clear that Nash's rights would be controlled by this Court's review of the Liability Order. A. 178. Nash understood the same thing, and expressed this understanding in unequivocal representations to this Court. A. 90, 93. She changed her position only after participating fully in the briefing and first oral argument of the Ruiz appeal-after the time to seek leave to appeal from her judgment had elapsed. Having been provided and having taken every opportunity to try to impose liability on the Port Authority, and having recognized repeatedly that this Court's review of the Liability Order would control her rights, Nash cannot now be heard to claim that the Supreme Court's long-standing authority to vacate final judgments is inapplicable to her. 19 CONCLUSION For the foregoing reasons, the decision and order of the Appellate Division should be affirmed. 19 See supra n.16. 39 US_ACTIVE:\44261848\ 15\68050.0049 Dated: New York, New York July 8, 2013 Respectfully submitted, RiChard A. Rothman Gregory Silbert Karin Portlock Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, New York 10153 (212) 310-8000 - Attorneys for Defendant-Respondent Port Authority of New York and New Jersey 40