Bianco v. Dougherty

Oct 5, 1976
Versions:54 A.D.2d 681
387 N.Y.S.2d 263
1976 N.Y. App. Div. LEXIS 14222

In an action to declare a deed a mortgage, defendant appeals from an order of the Supreme Court, Nassau County, dated August 12, 1975, which (1) denied his motion to vacate an interlocutory judgment of the same court, dated October 31, 1968, and (2) granted plaintiff’s cross motion to the extent of compelling him to file a verified account. Order affirmed, with $50 costs and disbursements. The prior determination of defendant’s motion to vacate the interlocutory judgment constitutes res judicata and bars the instant motion (see Metropolitan Distrs. v Hyndsman, 201 Mise 1045, affd 279 App Div 786). Both of the defendant’s motions were made pursuant to CPLR 5015. CPLR 5015 (subd [a], par 3), which provides that "fraud, misrepresentation, or other misconduct of an adverse party” is a ground for relief from an order or judgment, can be construed to include the ground of laches (see CPLR 104; Bardach v Mayfair-Flushing Corp., 49 Mise 2d 380, affd 26 AD2d 620). This ground was no less apparent at the time of the making of defendant’s first motion than at the time of the making of his second motion. Latham, Acting P. J. Margett, Rabin, Titone and Hawkins, JJ., concur.