Tornheim v. Blue & White Food Products Corp.

88 A.D.3d 869, 931 N.Y.2d 244

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 2011
• Status: Published

Opinion

Upon his motion to vacate the judgment, the plaintiff failed to present either newly-discovered evidence which, if introduced at trial, would have produced a different result (see CPLR 5015 [a] [2]), or any evidence of fraud, misrepresentation, or other misconduct on the part of the defendant (see CPLR 5015 [a] [3]). Therefore, the motion was properly denied (see Walker v Weinstock, 255 AD2d 508 [1998]).

Moreover, the conduct of the plaintiff and his attorney in pursuing the instant appeal appears to be (a) completely without merit in law or fact and unsupported by a reasonable argument for an extension, modification, or reversal of existing law, or (b) undertaken primarily to delay or prolong the resolution of litigation or to harass or maliciously injure another (see Rules of Chief Administrator of Cts [22 NYCRR] § 130-1.1 [c]; Tornheim v Blue & White Food Prods. Corp., 73 AD3d 749 [2010]; Weinstock v Weinstock, 253 AD2d 873, 874 [1998], cert denied 526 US 1088 [1999]; Palmieri v Thomas, 29 AD3d 658, 659 [2006]). Accordingly, we direct counsel for the parties to submit an affirmation or affidavit on the issue of the imposition of sanctions and/or costs, if any, against the plaintiff and/or his counsel pursuant to 22 NYCRR 130-1.1 (c). Skelos, J.P., Balkin, Leventhal and Hall, JJ., concur.