| Bay Crest Assn., Inc. v Paar |
| 2012 NY Slip Op 06771 [99 AD3d 744] |
| October 10, 2012 |
| Appellate Division, Second Department |
| Bay Crest Association, Inc., Respondent, v Louis Paar etal., Appellants. |
—[*1] Hamburger, Maxson, Yaffe, Knauer & McNally, LLP, Melville, N.Y. (Richard Hamburgerand William P. Caffrey, Jr., of counsel), for respondent.
In an action to collect unpaid annual assessments, the defendants appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Suffolk County (Spinner, J.), datedDecember 16, 2010, as (1) granted that branch of the plaintiff's motion which was pursuant toCPLR 2606 for payment from funds belonging to the defendant Suzanne De Lisi and held in twoaccounts by the Suffolk County Treasurer in satisfaction of a judgment of the same court enteredDecember 16, 2008, insofar as it was entered against the defendant Suzanne De Lisi, (2) deniedtheir cross motion pursuant to CPLR 5015 (a) to vacate the judgment, (3) denied that branch oftheir motion which was for release to the defendant Suzanne De Lisi of funds belonging to herand held by the Suffolk County Treasurer in the two accounts, and (4) denied, without a hearing,their separate motion to hold the plaintiff's counsel in civil and criminal contempt.
Ordered that the appeal by the defendant Louis Paar from so much of the order as grantedthat branch of the plaintiff's motion which was pursuant to CPLR 2606 for the payment fromfunds belonging to the defendant Suzanne De Lisi and held in two accounts by the SuffolkCounty Treasurer in satisfaction of the judgment insofar as it was entered against the defendantSuzanne De Lisi is dismissed, as the defendant Louis Paar is not aggrieved by that portion of theorder (see CPLR 5511); and it is further,
Ordered that the appeal from so much of the order as denied that branch of the defendants'motion which was for the release to them of the funds held in the two accounts by the SuffolkCounty Treasurer is dismissed as academic in light of our determination of the remainder of theappeal; and it is further,
Ordered that the order is affirmed insofar as reviewed, with one bill of costs.
In this action to recover unpaid annual assessments, the plaintiff obtained a judgment againstthe defendants entered December 16, 2008. The judgment was affirmed by this Court on a priorappeal (see Bay Crest Assn., Inc. vPaar, 72 AD3d 713 [2010]).
The plaintiff then moved pursuant to CPLR 2606 for payment in partial satisfaction [*2]of the judgment from funds deposited by the defendants and held bythe Suffolk County Treasurer. The defendants cross-moved pursuant to CPLR 5015 (a) to vacatethe judgment based on fraud, misrepresentation, or other misconduct. The defendants alsoseparately moved, inter alia, for release to them of the funds held by the Suffolk CountyTreasurer, and to hold the plaintiff's counsel in civil and criminal contempt. Prior to thedetermination of the motions and the cross motion, the defendant Louis Paar satisfied thejudgment insofar as it was entered against him.
The Supreme Court granted that branch of the plaintiff's motion which was for payment fromfunds belonging to the defendant Suzanne De Lisi and held in two accounts by the SuffolkCounty Treasurer in satisfaction of the judgment insofar as it was entered against De Lisi. Thecourt granted that branch of the defendants' separate motion which was to release, to Paar, all ofthe funds belonging to him, which were held in one of the two accounts. The court denied thedefendants' cross motion and their separate motion to the extent that it sought the release to DeLisi of the funds belonging to her and held in the two accounts. The defendants appeal.
Pursuant to CPLR 5015 (a), a court may vacate an order or judgment based upon, inter alia,fraud, misrepresentation, or other misconduct of an adverse party. Here, the defendants failed tosatisfy their burden of establishing that the judgment was procured through fraud or othermisconduct (see Gaw v Gaw, 80AD3d 557 [2011]; Badgett vBadgett, 2 AD3d 379 [2003]; see also Port Vil. HOA, Inc. v Summit Assoc., 33Misc 3d 39, 42 [2011]), or that any of the other statutory grounds for vacatur set forth in CPLR5015 (a) apply (see Alderman vAlderman, 78 AD3d 621 [2010]). The defendants also failed to show that there was abasis to invoke the court's inherent power to vacate the judgment in the interest of substantialjustice (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]). Accordingly,the Supreme Court properly denied the defendants' cross motion pursuant to CPLR 5015 (a) tovacate the judgment.
For the same reasons, the Supreme Court properly granted that branch of the plaintiff'smotion which was for payment from funds belonging to De Lisi and held in the two accounts bythe Suffolk County Treasurer in satisfaction of the judgment insofar as it was entered against DeLisi. Since the Supreme Court properly directed that all of the funds belonging to Paar, whichwere held in one of those two accounts, were to be released to him, and the proper payment ofthe remainder of the funds from those two accounts left those accounts empty, the defendants'appeal from so much of the order as denied that branch of their motion which was to releasethose funds to De Lisi has been rendered academic.
The Supreme Court also properly denied, without a hearing, the defendants' motion to holdthe plaintiff's counsel in civil and criminal contempt (see Judiciary Law §§750 [A]; 753 [A] [1]; Jaffe v Jaffe,44 AD3d 825 [2007]).
The defendants' remaining contentions are without merit. Rivera, J.P., Florio, Chambers andCohen, JJ., concur.