ALEVY v. HERZ (2024)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about April 11, 2023, which denied defendant's motion to vacate a judgment, unanimously affirmed, without costs.

The court correctly denied defendant's motion to vacate a California money judgment based on lack of personal jurisdiction or fraud (see Ionescu v. Brancoveanu, 246 A.D.2d 414, 416, 668 N.Y.S.2d 164 [1st Dept. 1998]).  Defendant appeared in the California action through an answer.  While she asserted the defense of personal jurisdiction in her answer, she failed to move on that defense, as required by California law (see Cal Code Civ Pro 1014, 410.50;  Fireman's Fund Ins. Co. v. Sparks Constr., Inc., 114 Cal.App.4th 1135, 1145, 8 Cal.Rptr.3d 446 [2004]).  As such, she submitted to personal jurisdiction in California, which foreclosed a collateral attack on jurisdiction here in New York (see Ionescu v. Brancoveanu, 246 A.D.2d at 416, 668 N.Y.S.2d 164).

Defendant's submission to jurisdiction also precludes her assertion of fraud on the court.  Defendant had the opportunity to raise her challenges to plaintiffs’ evidence in the California proceeding, but instead ultimately defaulted at trial.  As such, the California judgment is res judicata and the judgment cannot now be attacked on the basis of alleged fraud on the court (see id.).