Vinokur v. Penny Lane Owners Corp.

269 A.D.2d 226, 703 N.Y.S.2d 35, 2000 N.Y. App. Div. LEXIS 1509

Opinion

—Order, Supreme Court, New York County (Alfred Toker, J.), entered October 7, 1998, which, in an action by a tenant/shareholder against a residential cooperative for, inter alia, a declaration that his breach of the lease has been cured, and against a mortgage company for an injunction against its foreclosing on his shares, denied plaintiffs motion for a preliminary injunction against the mortgage company foreclosing on the shares, and granted the coop’s cross motion to dismiss the action and for attorneys’ fees to the extent of dismissing the action, unanimously modified, on the law, to award the coop attorneys’ fees, and remand for an assessment of the reasonable value thereof, and otherwise affirmed, with one bill of costs payable by plaintiff to defendants-respondents-appellants.

The action was properly dismissed on the ground that plaintiffs claims, including that the warrant of eviction was obtained fraudulently, should have been raised in the Civil Court proceeding that resulted in the issuance of the warrant. A litigant’s remedy for alleged fraud in the course of a legal proceeding “lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the civil judgment due to its fraudulent procurement, not a second plenary action collaterally attacking the judgment in the original action”. (Yalkowsky v Century Apts. Assocs., 215 AD2d 214, 215; see also, Matter of Stillwell, 139 NY 337, 340-341.) The same is true with respect to plaintiffs claim that the alterations underlying the judgment of possession have been cured, an issue that has now been considered on the merits by Civil Court and is pending before Appellate Term (see, Ansonia Assocs. v Costa, 167 AD2d 134, lv denied 77 NY2d 802). The lease provision for attorneys’ fees covers this litigation brought by plaintiff to be restored to possession (see, Simithis v 4 Keys Leasing & Maintenance Co., 151 AD2d 339, 341-342), and, accordingly, we modify to award the attorneys’ fees to the coop. Concur— Nardelli, J. P., Tom, Wallach, Rubin and Andrias, JJ.