779 N.Y.S.2d 460 | N.Y. App. Div. | 2004
Order, Supreme Court, New York County (Joan B. Lobis, J.), entered July 21, 2003, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the complaint and denied plaintiff’s discovery requests as moot, unanimously affirmed, without costs.
This action was dismissed as time barred, having been commenced in May 2002, more than six years after commission of the alleged fraud (CPLR 213 [8]), and well more than two years after its purported discovery during the course of litigation (CPLR 203 Eg]; see Julian v Carroll, 270 AD2d 457 [2000]). Additionally, plaintiff has not stated a cognizable claim for fraud. There is no support for her premise that the March 1996 fax, whose authenticity is disputed, was the primary factor in the habeas custody ruling. The record reflects that the court there awarded custody to Casale in the best interests of the child, based on the opinions of neutral psychiatric experts, as well as on an undisputed fax sent by plaintiff to defendants on April 16, 1996, which evidenced that Casale was to be the primary care giver. Plaintiff alleged that the language she used in the April fax was actually dictated by defendants.
The remedy for fraud allegedly committed during the course of a legal proceeding must be exercised in that lawsuit by moving to vacate the civil judgment (CPLR 5015 [a] [3]), and not by another plenary action collaterally attacking that judgment (Vinokur v Penny Lane Owners Corp., 269 AD2d 226 [2000]).
In view of the foregoing, there is no need to reach the discovery issue. Concur—Tom, J.P., Saxe, Ellerin, Williams and Gonzalez, JJ.