RIZZO v. ST LAWRENCE UNIVERSITY (2005)

Appeal from an order of the Supreme Court (Sise, J.), entered August 20, 2004 in Fulton County, which, inter alia, denied plaintiff's motion to vacate a prior order dismissing his complaint.

We previously affirmed both Supreme Court's dismissal of plaintiff's complaint, which alleged that defendant breached an implied contract to award him a valuable degree, and the denial of his motion to renew (305 A.D.2d 706, 758 N.Y.S.2d 252 [2003], lv. denied 100 N.Y.2d 509, 766 N.Y.S.2d 163, 798 N.E.2d 347 [2003] ).   Thereafter, plaintiff moved pursuant to CPLR 5015(a)(3) to vacate Supreme Court's orders on the ground of fraud.   The motion was denied and plaintiff now appeals, asserting that defendant committed fraud by issuing him a Master's degree despite his graduation with a grade point average of only 2.791.   Plaintiff claims that state law and defendant's policies require a 3.0 grade point average for issuance of that degree.   Given plaintiff's delay of more than two years in making his motion despite awareness of all relevant facts surrounding the issue, we conclude that he failed to seek vacatur within a reasonable time (see Matter of Di Fiore v. Scott, 2 A.D.3d 1417, 1418, 770 N.Y.S.2d 248 [2003];  Weimer v. Weimer, 281 A.D.2d 989, 989, 722 N.Y.S.2d 328 [2001];  City of Albany Indus. Dev. Agency v. Garg, 250 A.D.2d 991, 993, 672 N.Y.S.2d 541 [1998] ).   In any event, plaintiff's claim is unsubstantiated by the evidence and patently meritless.   Thus, Supreme Court did not abuse its discretion in denying plaintiff's motion (see Clapp v. LeBoeuf, Lamb, Leiby & MacRae, 286 A.D.2d 643, 644, 730 N.Y.S.2d 429 [2001];  see also Miller v. Lanzisera, 273 A.D.2d 866, 868, 709 N.Y.S.2d 286 [2000], appeal dismissed 95 N.Y.2d 887, 715 N.Y.S.2d 378, 738 N.E.2d 782 [2000] ).

ORDERED that the order is affirmed, without costs.