| Matter of Thrall v CNY Centro, Inc. |
| 2011 NY Slip Op 08020 [89 AD3d 1449] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Jeffrey Thrall, Respondent, v CNY Centro, Inc., et al.,Appellants. (Appeal No. 1.) |
—[*1] Robert Louis Riley, Syracuse, for petitioner-respondent.
Appeal from an order of the Supreme Court, Onondaga County (James P. Murphy, J.), enteredNovember 9, 2009 in a proceeding pursuant to CPLR article 78. The order, inter alia, granted in partpetitioner's motion to vacate a prior judgment, which dismissed the amended petition.
It is hereby ordered that the order so appealed from is unanimously modified on the law by denyingthe motion in its entirety and dismissing the amended petition, and as modified the order is affirmedwithout costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul thedetermination of respondents, his former employers, denying his application for disability pensionbenefits, and in appeal No. 1 respondents appeal from an order that, inter alia, granted in partpetitioner's motion pursuant to CPLR 5015 (a) (3) seeking to vacate the judgment dismissing hisamended petition. By way of background, we note that Amalgamated Transit Union Local 580(Union), which represented petitioner, initially filed a grievance on petitioner's behalf under the collectivebargaining agreement (CBA) between the Union and respondents based on the denial of theapplication. The grievance was submitted to a Grievance Review Board formed pursuant to section2.07 (b) of the CBA. After respondents advised the Union that the grievance was dismissed basedupon the Grievance Review Board's vote, petitioner commenced this proceeding. Supreme Court(Roy, J.) dismissed the amended petition on the merits and, on a prior appeal, this Court, inter alia,affirmed the judgment dismissing the amended petition (Matter of Thrall v CNY Centro, Inc., 17 AD3d 1026 [2005]).
In appeal No. 1, we conclude that Supreme Court (Murphy, J.) erred in granting in part petitioner'smotion seeking to vacate the judgment pursuant to CPLR 5015 (a) (3) inasmuch as the instant motion isbarred by res judicata (see Jericho Group Ltd. v Midtown Dev., L.P., 67 AD3d 431[2009], lv denied 14 NY3d 712 [2010]). Petitioner twice moved unsuccessfully for leave torenew with respect to the dismissal of his amended petition, and in each instance his appeals from the[*2]orders denying his respective motions were deemed abandonedand dismissed based upon his failure to perfect the appeals in a timely fashion (see 22 NYCRR1000.12 [b]; Williams v Williams, 52AD3d 1271 [2008]). The ground on which petitioner now relies in seeking vacatur was "no lessapparent at the time of the making of the . . . motion[s]" seeking leave to renew than at thetime of the instant motion (Bianco v Dougherty, 54 AD2d 681 [1976]). In any event, on themerits, we conclude that petitioner failed to substantiate his allegations of fraud sufficiently to warrantvacatur of the judgment (see Miller v Lanzisera, 273 AD2d 866, 868 [2000], appealdismissed 95 NY2d 887 [2000], rearg denied 96 NY2d 731 [2001]). We therefore denythe motion in its entirety and dismiss the amended petition in appeal No. 1. Respondents have raised noissue with respect to that part of the order denying their cross motion, and they therefore are deemed tohave abandoned any issues with respect thereto (see Ciesinski v Town of Aurora, 202 AD2d984 [1994]).
In appeal No. 2, respondents appeal from those parts of an order and judgment that, inter alia,annulled the determination. In view of our decision in appeal No. 1, we dismiss as moot the appealfrom the order and judgment in appeal No. 2 (see generally Matter of Hearst Corp. v Clyne,50 NY2d 707, 714-715 [1980]). In addition, "in order to prevent [the order and] judgment which isunreviewable for mootness from spawning any legal consequences or precedent" (id. at 718;see Funderburke v New York State Dept. ofCiv. Serv., 49 AD3d 809, 811 [2008]), we also vacate that order and judgment (seeFunderburke, 49 AD3d at 811). Present—Peradotto, J.P., Carni, Lindley, Sconiers andGreen, JJ.