Utica Mutual Insurance v. East End Pools & Courts, Inc.

Appellate Division of the Supreme Court of New York

Utica Mutual Insurance v. East End Pools & Courts, Inc.

271 A.D.2d 526, 706 N.Y.S.2d 353, 2000 N.Y. App. Div. LEXIS 4064

Appellate Division of the Supreme Court of the State of New York·Decided April 10, 2000·Published·Cited by 3 cases

Opinion

—In an action, inter alia, for a judgment declaring that the plaintiff had a duty to defend and indemnify the defendants East End Pools & Courts, Inc., Recreational Concepts, Inc., and Bartholomew Torpey, in an action entitled Gerulaitis v Recreational Concepts, Inc., pending in the Supreme Court, New York County, under index No. 113586/95, the defendant Aldona Gerulaitis, as Executor of the estate of Vitas Gerulaitis, appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated February [527]*52716, 1999, which denied, based on lack of jurisdiction, her motion pursuant to CPLR 5015 (a) (4) to vacate a judgment of the same court entered July 24, 1997, declaring that the plaintiff had no obligation to defend and indemnify the defendants East End Pools & Courts, Inc., Recreational Concepts, Inc., and Bartholomew Torpey.

Ordered that the order is affirmed, with costs.

The appellant is barred from raising the claim that the Supreme Court rendered a judgment in the absence of necessary parties (see, Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 69). In any event, the Supreme Court had jurisdiction to render a judgment in this action. Accordingly, the Supreme Court properly denied the appellant’s motion to vacate the judgment based on lack of jurisdiction (see, CPLR 5015 [a] [4]). Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.

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—In an action, inter alia, for a judgment declaring that the plaintiff had a duty to defend and indemnify the defendants East End Pools & Courts, Inc., Recreational Concepts, Inc., and Bartholomew Torpey, in an action entitled Gerulaitis v Recreational Concepts, Inc., pending in the Supreme Court, New York County, under index No. 113586/95, the defendant Aldona Gerulaitis, as Executor of the estate of Vitas Gerulaitis, appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated February [527]*52716, 1999, which denied, based on lack of jurisdiction, her motion pursuant to CPLR 5015 (a) (4) to vacate a judgment of the same court entered July 24, 1997, declaring that the plaintiff had no obligation to defend and indemnify the defendants East End Pools & Courts, Inc., Recreational Concepts, Inc., and Bartholomew Torpey.

Ordered that the order is affirmed, with costs.

The appellant is barred from raising the claim that the Supreme Court rendered a judgment in the absence of necessary parties (see, Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 69). In any event, the Supreme Court had jurisdiction to render a judgment in this action. Accordingly, the Supreme Court properly denied the appellant’s motion to vacate the judgment based on lack of jurisdiction (see, CPLR 5015 [a] [4]). Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.

Utica Mutual Insurance v. East End Pools & Courts, Inc., 271 A.D.2d 526, 706 N.Y.S.2d 353, 2000 N.Y. App. Div. LEXIS 4064 (N.Y. Ct. App. 2000).

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271 A.D.2d 526 (Utica Mutual Insurance v. East End Pools & Courts, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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