Pettus v. Mazzola

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 22, 2019
• Docket: 2019 NYSlipOp 50395(U)
• Status: Published

Opinion

James Pettus, Plaintiff-Appellant,

against

Bryan Mazzola, Brett Carrick, and Boyd, Richards, Parker, Colonnelli, P.L., Defendants-Respondents.

Plaintiff appeals from an order of the Small Claims Part of the Civil Court of the City of New York, Bronx County (Brenda Rivera, J.), entered November 8, 2018, which granted defendant's motion to dismiss the action and enjoined plaintiff from initiating any further litigation without prior approval of the Court.

Per Curiam.

Order (Brenda Rivera, J.), entered November 8, 2018, affirmed, without costs.

This small claims action was properly dismissed, since it was an improper collateral attack upon the June 16, 2015 vexatious litigation order of the Supreme Court, Bronx County (see Matter of Pettus v Board of Directors, 2018 NY Slip Op 78019[U], [1st Dept 2018]; see also Vinokur v Penny Lane Owners Corp., 269 AD2d 226 [2000]). Insofar as plaintiff contends that defendants, the attorneys for the defendant in the Bronx County action, falsely procured said order, plaintiff's remedy lies exclusively in that prior lawsuit itself, i.e., by moving to vacate the order due to its fraudulent procurement, not in a second plenary action collaterally attacking the order (see Yalkowsky v Century Apts. Assoc., 215 AD2d 214, 215 [1995]).

We also reject plaintiff's challenge to that portion of the order on appeal barring him from initiating further litigation in the Civil Court without prior court approval (see Pettus v Board of Directors, appeal numbered 19-061, decided herewith.)

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 22, 2019