Bianco v. Dougherty

Appellate Division of the Supreme Court of New York

Bianco v. Dougherty

54 A.D.2d 681, 387 N.Y.S.2d 263, 1976 N.Y. App. Div. LEXIS 14222

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 5, 1976

StatusPublished

Cited by11 cases

This text of 54 A.D.2d 681 (Bianco v. Dougherty) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bianco v. Dougherty, 54 A.D.2d 681, 387 N.Y.S.2d 263, 1976 N.Y. App. Div. LEXIS 14222 (N.Y. Ct. App. 1976).

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Opinion

In an action to declare a deed a mortgage, defendant appeals from an order of the Supreme Court, Nassau County, dated August 12, 1975, which (1) denied his motion to vacate an interlocutory judgment of the same court, dated October 31, 1968, and (2) granted plaintiff’s cross motion to the extent of compelling him to file a verified account. Order affirmed, with $50 costs and disbursements. The prior determination of defendant’s motion to vacate the interlocutory judgment constitutes res judicata and bars the instant motion (see Metropolitan Distrs. v Hyndsman, 201 Mise 1045, affd 279 App Div 786). Both of the defendant’s motions were made pursuant to CPLR 5015. CPLR 5015 (subd [a], par 3), which provides that "fraud, misrepresentation, or other misconduct of an adverse party” is a ground for relief from an order or judgment, can be construed to include the ground of laches (see CPLR 104; Bardach v Mayfair-Flushing Corp., 49 Mise 2d 380, affd 26 AD2d 620). This ground was no less apparent at the time of the making of defendant’s first motion than at the time of the making of his second motion. Latham, Acting P. J. Margett, Rabin, Titone and Hawkins, JJ., concur.

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In an action to declare a deed a mortgage, defendant appeals from an order of the Supreme Court, Nassau County, dated August 12, 1975, which (1) denied his motion to vacate an interlocutory judgment of the same court, dated October 31, 1968, and (2) granted plaintiff’s cross motion to the extent of compelling him to file a verified account. Order affirmed, with $50 costs and disbursements. The prior determination of defendant’s motion to vacate the interlocutory judgment constitutes res judicata and bars the instant motion (see Metropolitan Distrs. v Hyndsman, 201 Mise 1045, affd 279 App Div 786). Both of the defendant’s motions were made pursuant to CPLR 5015. CPLR 5015 (subd [a], par 3), which provides that "fraud, misrepresentation, or other misconduct of an adverse party” is a ground for relief from an order or judgment, can be construed to include the ground of laches (see CPLR 104; Bardach v Mayfair-Flushing Corp., 49 Mise 2d 380, affd 26 AD2d 620). This ground was no less apparent at the time of the making of defendant’s first motion than at the time of the making of his second motion. Latham, Acting P. J. Margett, Rabin, Titone and Hawkins, JJ., concur.

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Bluebook (online)

54 A.D.2d 681, 387 N.Y.S.2d 263, 1976 N.Y. App. Div. LEXIS 14222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bianco-v-dougherty-nyappdiv-1976.

Opinion

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