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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 2000
• Status: Published

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 16, 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.