Amelia Manya Emily Ort, respondent, v. Philip Ort, et al., defendants, Jeffrey Martin, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

Amelia Manya Emily Ort, respondent, v. Philip Ort, et al., defendants, Jeffrey Martin, appellant.

2009-02992 (Index No. 45230/07)

Decided: November 30, 2010

ANITA R. FLORIO, J.P. ARIEL E. BELEN PLUMMER E. LOTT LEONARD B. AUSTIN, JJ. Arnold J. Ludwig, Brooklyn, N.Y., for appellant. Moskowitz, Book & Walsh, LLP, New York, N.Y. (Avraham C. Moskowitz and M. Todd Parker of counsel), for respondent.

Argued-November 9, 2010

DECISION & ORDER

In an action, inter alia, for injunctive relief, the defendant Jeffrey Martin appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated January 14, 2009, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Jeffrey Martin for summary judgment dismissing the complaint insofar as asserted against him is granted.

Contrary to the Supreme Court's determination, the appellant is entitled to summary judgment.   The complaint in this action seeks to collaterally attack a certain judgment obtained by the appellant against the defendant Abraham J. Ort on the ground of intrinsic fraud, relief that can only be obtained in the action in which the judgment was entered (see 73 N.Y. Jur 2d, Judgments § 273;  see also CPLR 5015[a][3];  Third Preliminary Report of Advisory Committee on Practice and Procedure [1959 N.Y. Leg Doc No. 17, at 204];  Bank of New York v. Stradford, 55 AD3d 765).   Accordingly, the Supreme Court should have granted the appellant's motion for summary judgment dismissing the complaint insofar as asserted against him for failure to state a cause of action, an affirmative defense that he asserted in his answer (see Light v. Light, 64 AD3d 633, 634).

In light of our determination, we need not address the parties' remaining contentions.

FLORIO, J.P., BELEN, LOTT and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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