| N.Y. App. Div. | Jan 30, 1989
— In a proceeding pursuant to CPLR article 78 to review a declaratory judgment in another
Ordered that the order and judgment is affirmed, with costs.
In this proceeding, the petitioner seeks to review a judgment of the Supreme Court which resulted from a stipulation in an action entitled Schemmer v Town of Pawling. The petitioner’s parcel of land abuts a parcel owned by John Schemmer, and the challenged declaratory judgment determined that a local zoning ordinance prohibiting kitchens in accessory buildings did not apply to Schemmer’s property since the existence of a kitchen in an accessory building housing his farm employees was protected by Agriculture and Markets Law § 305 (2) which limits the extent to which local ordinances may interfere with farm practices.
The petitioner, who was not a party to the Schemmer action, is seeking to reverse, by collateral attack, a judgment entered by a court of coordinate jurisdiction. A proceeding pursuant to CPLR article 78 is not the proper vehicle to review such a prior judgment.
It is well settled that a collateral attack will be successful only against a judgment rendered by a court that did not have jurisdiction over the parties or the subject matter. Although fraud is a ground for a collateral attack, the fraud must be such as to deprive the court of jurisdiction (see, 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 5011.43; Marcus v Marcus, 194 Misc. 464" court="N.Y. Sup. Ct." date_filed="1949-01-06" href="https://app.midpage.ai/document/marcus-v-marcus-5429796?utm_source=webapp" opinion_id="5429796">194 Misc 464). A challenger will not prevail by merely showing fraud in the underlying transaction but must show fraud in the very means by which the judgment was procured (see, Fuhrmann v Fanroth, 254 NY 479). Since the petitioner has not made such a showing, the petition was properly dismissed.
We have considered the petitioner’s remaining contentions and find them to be without merit. Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.