Opinion
November 23, 1983
Appeal from an order of the Supreme Court at Special Term (Crangle, J.), entered April 29, 1983 in Schenectady County, which denied plaintiffs' motion for summary judgment. This is a plenary action against defendant who was awarded summary judgment against plaintiffs six years ago in an action for specific performance of a contract for the sale of real property. That judgment was affirmed by this court without opinion ( Shave v James, 60 A.D.2d 800). The claim for relief here is that the order in that case should be vacated. It is based solely upon an allegation that, subsequent to the award of summary judgment against them and the affirmance thereof, plaintiffs won a motion to dismiss the defendant's complaint. Upon a motion for summary judgment, this court is authorized to search the record and award summary judgment against the moving party (CPLR 3212, subd [b]), and we find this case appropriate for the exercise of that authority. No plenary action lies to set aside a prior judgment. This can only be effected by a proper and timely motion to vacate (CPLR 2221). Even assuming that subsequent to the judgment against them in defendant's original action, plaintiffs somehow were successful on a motion to dismiss defendant's complaint in that action, any such dismissal was obviously a complete nullity. For the foregoing reasons, no issue of fact exists as to plaintiffs' lack of entitlement to any relief herein and summary judgment should be rendered against them with costs. Order modified, on the law, by granting summary judgment in favor of defendant, and, as so modified, affirmed, with costs to defendant. Sweeney, J.P., Casey, Mikoll, Yesawich, Jr., and Levine, JJ., concur.