| Ort v Ort |
| 2010 NY Slip Op 08911 [78 AD3d 1138] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Amelia Manya Emily Ort, Respondent, v Philip Ort et al.,Defendants, and Jeffrey Martin, Appellant. |
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In an action, inter alia, for injunctive relief, the defendant Jeffrey Martin appeals from anorder of the Supreme Court, Kings County (Jacobson, J.), dated January 14, 2009, which deniedhis motion for summary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantJeffrey Martin for summary judgment dismissing the complaint insofar as asserted against him isgranted.
Contrary to the Supreme Court's determination, the appellant is entitled to summaryjudgment. The complaint in this action seeks to collaterally attack a certain judgment obtained bythe appellant against the defendant Abraham J. Ort on the ground of intrinsic fraud, relief thatcan only be obtained in the action in which the judgment was entered (see 73 NY Jur 2d,Judgments § 273; see also CPLR 5015 [a] [3]; 3d Preliminary Rep of AdvisoryComm on Prac and Pro, 1959 NY Legis Doc No. 17, at 204; Bank of N.Y. v Stradford,55 AD3d 765 [2008]). Accordingly, the Supreme Court should have granted the appellant'smotion for summary judgment dismissing the complaint insofar as asserted against him forfailure to state a cause of action, an affirmative defense that he asserted in his answer (seeLight v Light, 64 AD3d 633, 634 [2009]).
In light of our determination, we need not address the parties' remaining contentions. Florio,J.P., Belen, Lott and Austin, JJ., concur.