| Jericho Group, Ltd. v Midtown Dev., L.P. |
| 2008 NY Slip Op 00200 [47 AD3d 463] |
| January 15, 2008 |
| Appellate Division, First Department |
| Jericho Group, Ltd., Respondent, v Midtown Development,L.P., Appellant. |
—[*1] Herzfeld & Rubin, P.C., New York City (David B. Hamm of counsel), forrespondent.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered February 20, 2007,which, insofar as appealed from, granted plaintiff's motion to vacate a judgment of dismissalentered at the direction of this Court, unanimously reversed, on the law, without costs, and themotion denied. The Clerk is directed to reenter judgment in favor of defendant dismissing theamended complaint.
The prior action dismissed by this Court sought damages and specific performance inconnection with a contract for the purchase of real estate, after plaintiff buyer had cancelled thecontract and defendant seller had returned the down payment. In reversing the motion court anddismissing the amended complaint, this Court held, inter alia, that plaintiff had no cause of actionfor fraud based on defendant's alleged failure to produce certain documents requested by plaintiffat the end of the contractual due diligence period (32 AD3d 294, 300 [2006]). Plaintiff nowclaims that in disclosure proceedings conducted during the pendency of the prior appeal,defendant produced, or admitted the nonexistence, of documents that it had previouslyrepresented it did not have, and thereby committed a fraud on the court. Such claim, however,goes to defendant's compliance with its contractual obligation to produce documents, i.e., theunderlying transaction, not to "the very means by which the judgment was procured," andtherefore does not avail to [*2]vacate the judgment pursuant toCPLR 5015 (a) (3) (Cofresi v Cofresi, 198 AD2d 321, 321 [1993] [internal quotationmarks omitted]). In any event, plaintiff fails to show fraud in the underlying transaction.Concur—Lippman, P.J., Buckley, Gonzalez and Sweeny, JJ.