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ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT).

The Second Department noted that an action alleging attorneys adduced false testimony in a prior court proceeding must be brought as a motion to vacate the judgment in the prior case, not as a new action:

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Generally, a party who has lost an action as a result of alleged fraud or false testimony cannot collaterally attack the judgment in a separate action against the party who adduced the false evidence, and the plaintiff’s remedy lies exclusively in moving to vacate the judgment … . Under an exception to that rule, a separate action may be commenced where the alleged perjury or fraud in the underlying action was “merely a means to the accomplishment of a larger fraudulent scheme” … which was “greater in scope than the issues determined in the prior proceeding” … .

Here, the moving defendants established their prima facie entitlement to summary judgment dismissing the causes of action alleging fraud, aiding and abetting fraud, violation of Judiciary Law § 487, and prima facie tort insofar as asserted against them by demonstrating that the plaintiffs are merely attempting to collaterally attack an order issued in the underlying action. In opposition, the plaintiffs only raised conclusory and unsubstantiated allegations that the moving defendants’ fraud in the underlying action was “merely a means to the accomplishment of a larger fraudulent scheme” … . DeMartino v Lomonaco, 2017 NY Slip Op 07706, Second Dept 11-8-17

 

CIVIL PROCEDURE (FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))/FRAUD (FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))/ATTORNEYS (FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))/FALSE TESTIMONY (ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))EVIDENCE (FALSE TESTIMONY, FRAUD, ALLEGATION THAT LAW FIRM ADDUCED FALSE EVIDENCE IN A PROCEEDING MUST BE ASSERTED IN A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT AS A NEW ACTION (SECOND DEPT))

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PLAINTIFF WAS DETAINED BY DEFENDANT HOME DEPOT’S EMPLOYEE BASED ON A FALSE ALLEGATION AND WAS SUBSEQUENTLY ARRESTED; PLAINTIFF’S VERDICT ON HIS BATTERY AND FALSE IMPRISONMENT CAUSES OF ACTION UPHELD (SECOND DEPT). ​
QUESTION OF FACT WHETHER ABUTTING PROPERTY OWNER VIOLATED THE NYC ADMINISTRATIVE CODE AND THEREBY OWED A DUTY TO PLAINTIFF WHO ALLEGEDLY FELL OVER A CABLE ON THE SIDEWALK.
SUMMARY JUDGMENT CANNOT REST ON GAPS IN THE OPPOSING PARTY’S PAPERS; MOVING PARTY MUST ADDRESS EVERY NECESSARY ELEMENT WITH SUBSTANTIVE PROOF.
LANDLORD DID NOT HAVE A DUTY TO DISCLOSE LOCAL LAWS RESTRICTING THE USE OF THE PROPERTY.
ALTHOUGH A CHILD WAS PRESENT IN THE HOME WHEN FATHER STRUCK HIS PREGNANT GIRLFRIEND, THERE WAS NO EVIDENCE THE CHILD SAW OR HEARD THE INCIDENT AND NO EVIDENCE THE CHILD WAS UPSET BY THE INCIDENT; THE NEGLECT AND DERIVATIVE NEGLECT (OF THE THEN UNBORN CHILD) FINDINGS REVERSED (SECOND DEPT).
THE CIRCUMSTANTIAL EVIDENCE PRESENTED BY PLAINTIFF DID NOT IDENTIFY THE CAUSE OF PLAINTIFF’S DECEDENT’S SLIP AND FALL; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
JUDGE’S IMPROPER COMMENTS CONCERNING PLAINTIFF’S EXPERT WARRANTED A NEW TRIAL ON DAMAGES.

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