Opinion
2001-00148
Argued October 29, 2001
December 3, 2001.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (S. Leone, J.), dated December 8, 2000, which denied his motion, inter alia, pursuant to CPLR 5015(a)(3) to vacate a prior order of the same court dated February 16, 2000, granting the motion of the defendants Nancy Nasser, f/k/a Nancy Toussie, the Estate of Marie Toussie, and the Estate of Samuel Toussie to dismiss the complaint insofar as asserted against them as time-barred and to cancel and discharge the mortgage.
Steve Queller, New York, N.Y. (Abraham Shalo of counsel), for appellant.
Shiboleth, Yisraeli, Roberts Zisman, LLP, New York, N.Y. (Matthew Gruskin and Richard H. Wender of counsel), for respondents.
Before: CORNELIUS J. O'BRIEN, J.P., MYRIAM J. ALTMAN, GLORIA GOLDSTEIN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Supreme Court properly denied that branch of the plaintiff's motion pursuant to CPLR 5015(a)(3) which was to vacate a prior order granting the respondents' motion to dismiss the complaint insofar as asserted against them as time-barred and to cancel and discharge the mortgage (see, Haber v. Nasser, 289 A.D.2d 199 [Appellate Division Docket No. 2000-03896, decided herewith]). The alleged statements made by the respondent Nancy Nasser, f/k/a Nancy Toussie, do not qualify as "fraud" or "misrepresentations" within the meaning of CPLR 5015(a)(3), since they were made during the underlying transaction and were not the means by which the prior order was procured (see, Hall Signs v. Aries Striping, 250 A.D.2d 811; Balatti v. Balatti, 232 A.D.2d 593; Cofresi v. Cofresi, 198 A.D.2d 321; Dunkin' Donuts v. HWT Assocs., 181 A.D.2d 713).
The plaintiff's remaining contentions are without merit.
O'BRIEN, J.P., ALTMAN, GOLDSTEIN and H. MILLER, JJ., concur.