In re Augustyniak

Appellate Division of the Supreme Court of New York

In re Augustyniak

166 A.D.2d 341

Appellate Division of the Supreme Court of the State of New York·Decided October 25, 1990·Published

Opinion

Order, Supreme Court, New York County (Irving Kirschenbaum, J.), entered on June 17, 1987, which, inter alia, denied respondents-appellants’ motion to transfer an action, from the Civil Court, New York County to the Supreme Court, New York County and to vacate a judgment of the same court (Allen Murray Myers, J.), entered on February 16, 1984, unanimously affirmed, without costs.

Appellants moved to vacate a judgment of ejectment en[342]*342tered in 1984 on the grounds that it was obtained through fraud and other misconduct. Absent a showing that they were not in possession of the evidence now presented at the time the case was litigated, these arguments present no more than a newly interposed theory of defense which could have been asserted prior to entry of judgment and do not warrant vacatur (see, Abacus Real Estate Fin. Co. v P.A.R. Constr. & Maintenance Corp., 128 AD2d 821). Nor is vacatur warranted in the interest of justice.

The motion to remove the Civil Court action was properly denied, since that action against appellants had been voluntarily discontinued and appellants’ couterclaims had been dismissed without prejudice. Concur—Murphy, P. J., Kupferman, Milonas, Ellerin and Rubin, JJ.

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Order, Supreme Court, New York County (Irving Kirschenbaum, J.), entered on June 17, 1987, which, inter alia, denied respondents-appellants’ motion to transfer an action, from the Civil Court, New York County to the Supreme Court, New York County and to vacate a judgment of the same court (Allen Murray Myers, J.), entered on February 16, 1984, unanimously affirmed, without costs.

Appellants moved to vacate a judgment of ejectment en[342]*342tered in 1984 on the grounds that it was obtained through fraud and other misconduct. Absent a showing that they were not in possession of the evidence now presented at the time the case was litigated, these arguments present no more than a newly interposed theory of defense which could have been asserted prior to entry of judgment and do not warrant vacatur (see, Abacus Real Estate Fin. Co. v P.A.R. Constr. & Maintenance Corp., 128 AD2d 821). Nor is vacatur warranted in the interest of justice.

The motion to remove the Civil Court action was properly denied, since that action against appellants had been voluntarily discontinued and appellants’ couterclaims had been dismissed without prejudice. Concur—Murphy, P. J., Kupferman, Milonas, Ellerin and Rubin, JJ.

In re Augustyniak, 166 A.D.2d 341 (N.Y. Ct. App. 1990).

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Opinion

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