Opinion
July 15, 1994
Appeal from the Supreme Court, Yates County, Cornelius, J.
Present — Pine, J.P., Lawton, Wesley and Doerr, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted plaintiffs' motion to vacate the prior order of the court approving a settlement agreement between defendant property owners and defendants Town Board of the Town of Jerusalem and related Town officials that resolved a number of lawsuits over the tax assessments and the regulation and use of lakefront property known as "Keuka Bluff Subdivision". In their submissions to the court, plaintiffs established that they are "interested person[s]" because they have a legitimate interest in seeking vacatur of the court's prior approval of the settlement (CPLR 5015 [a]; see, Town Law § 68; Oppenheimer v Westcott, 47 N.Y.2d 595, 602).
A motion to vacate an order must be made to the Judge who signed the order unless the Judge is unable to hear the application (CPLR 2221 [a]; Spahn v. Griffith, 101 A.D.2d 1011; People v. Petgen, 81 A.D.2d 951, 952, affd on other grounds 55 N.Y.2d 529). In this case, the Justice who signed the order subsequently recused himself. Thus, the motion was properly brought before a different Justice. On the record before us, it was not an abuse of discretion to vacate the order. "It is well established that a court maintains inherent power to vacate a judgment in the interest of justice" (Ruben v. American Foreign Ins. Co., 185 A.D.2d 63, 67).
The court's earlier dismissal of plaintiffs' declaratory judgment action that sought a determination of the legality of the settlement was not based on the merits and, therefore, did not serve as a bar to plaintiffs' contemporaneous application for intervention and vacatur in the settlement proceeding. The court properly determined that the settlement agreement unlawfully contracted away the Town's future authority to regulate the subdivision (see, Quigley v. City of Oswego, 71 A.D.2d 795, lv denied 48 N.Y.2d 607) and that the agreement violated article 6 (§ 6.5) of the Zoning Ordinance of the Town of Jerusalem.