Jones v. Buttarazzi

204 A.D.2d 1018, 614 N.Y.S.2d 957

Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiffs properly brought a plenary action alleging extrinsic fraud with respect to a confession of judgment entered in Rochester City Court (see, Tamimi v Tamimi, 38 AD2d 197; see also, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5015.-8). The action was properly brought in Supreme Court because plaintiffs’ demand for damages exceeds the jurisdiction of City Court. Plaintiffs are not entitled, however, to vacatur of the judgment in that action; vacatur must be sought in the court in which the judgment was rendered (see, CPLR 5015 [a] [3]). Thus, we grant in part defendant’s motion to dismiss the complaint and dismiss that portion of the demand for relief seeking vacatur. The order otherwise is affirmed. (Appeal from Order of Supreme Court, Monroe County, Kehoe, J.—Dismiss Complaint.) Present—Pine, J. P., Lawton, Callahan, Doerr and Davis, JJ.