Yip v. Ip

Jul 12, 1996
Versions:229 A.D.2d 979
646 N.Y.S.2d 481
1996 N.Y. App. Div. LEXIS 9025

—Order unanimously affirmed with costs. Memorandum: Under the circumstances of this case, we conclude that Supreme Court properly exercised its discretion in vacating the default judgment taken by plaintiff against defendants (see, CPLR 5015 [a] [3]; Oppenheimer v Westcott, 47 NY2d 595, 603-604; Tortorello v Tortorello, 161 AD2d 633, 634). Plaintiff withheld information from the court regarding prior and pending litigation, in which he asserted substantially the same claims against defendants, and misrepresented to the court that the allegations of his complaint in this action are not substantially controverted. We further conclude that the court properly dismissed the first and second causes of action as barred by res judicata. Those causes of action are virtually identical to the two causes of action that were dismissed in another lawsuit brought by plaintiff in 1984 against defendants (see, People v Trans World Airlines, 171 AD2d 76). Finally, the court properly exercised its discretion in dismissing plaintiffs remaining cause of action because it is the same as that asserted in the pending 1984 action (see, CPLR 3211 (a) (4); Whitney v Whitney, 57 NY2d 731, 732; Maier-Schule GMC v General Motors Corp., 210 AD2d 963). (Appeal from Order of Supreme Court, Erie County, Glownia, J.—Vacate Default Judgment.) Present—Green, J. P., Lawton, Fallon, Doerr and Boehm, JJ.