Rakosi v. Daniel Perla Associates

3 A.D.3d 431, 772 N.Y.S.2d 648, 2004 N.Y. App. Div. LEXIS 669

Opinion

Order, Supreme Court, New York County (Louis York, J.), entered on or about October 23, 2002, which granted defendants-respondents’ motions to dismiss the complaint as against them and denied plaintiffs cross motion to amend the complaint to add a necessary party, unanimously modified, on the law, to grant plaintiffs cross motion, and otherwise affirmed, without costs.

The action was properly dismissed as against defendants-respondents on the ground that it constitutes a collateral attack upon a prior judgment of foreclosure and sale. Although the evidence demonstrates that plaintiff was named and served in the foreclosure action, he defaulted and, rather than moving in that action under CPLR 5015 to vacate the resulting judgment, has impermissibly commenced a new plenary action alleging that the judgment was wrongfully obtained (see Vinokur v Penny Lane Owners Corp., 269 AD2d 226 [2000]).

The motion court should, however, have granted plaintiff’s cross motion to add a necessary party, Deca LLC, which may be inequitably affected by a judgment rendered in the remainder of this case against the nonmoving defendants. Concur—Nardelli, J.P., Ellerin, Williams and Gonzalez, JJ.