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Cofresi v. Cofresi

Appellate Division of the Supreme Court of New York, Second Department
Nov 15, 1993
198 A.D.2d 321 (N.Y. App. Div. 1993)

Opinion

November 15, 1993

Appeal from the Supreme Court, Queens County (Ambrosio, J.).


Ordered that the order is affirmed, with costs.

The defendant sought to vacate the judgment of divorce which was granted on January 20, 1987, on the ground of fraud or misrepresentation (see, CPLR 5015 [a] [3]). Specifically, she alleged that the execution of the parties' separation agreement in July 1985 was permeated by fraud because she was unrepresented by counsel and because her former husband failed to disclose that his law degree (he was then in law school) could possibly be marital property. However, it is well established that a party seeking to set aside 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" (Bell v Town Bd., 146 A.D.2d 729, 730). Accordingly, the defendant's allegations of fraud in the execution of the separation agreement are insufficient to warrant vacating the judgment under CPLR 5015 (a) (3) (see, Altman v Altman, 150 A.D.2d 304, 307; see also, Fidelity N.Y. v Hanover Cos., 162 A.D.2d 582). The defendant's remaining allegations failed to affirmatively establish fraud by clear and convincing evidence (see, 8A Carmody-Wait 2d, N Y Prac § 63:343). Thus, the court did not improvidently exercise its discretion in denying the defendant's motion.

We have examined the defendant's remaining contentions and find them to be without merit. Mangano, P.J., Balletta, Copertino and Joy, JJ., concur


Summaries of

Cofresi v. Cofresi

Appellate Division of the Supreme Court of New York, Second Department
Nov 15, 1993
198 A.D.2d 321 (N.Y. App. Div. 1993)
Case details for

Cofresi v. Cofresi

Case Details

Full title:MANUEL COFRESI, Respondent, v. ANN COFRESI, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 15, 1993

Citations

198 A.D.2d 321 (N.Y. App. Div. 1993)
603 N.Y.S.2d 184

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