Opinion
XXXXX
07-28-2020
LUZ S., Plaintiff, v. CESAR P., Defendant.
Counsel for Plaintiff: Virginia G. Alvarez, Esq., New York, NY Counsel for Defendant: Herbert A. Smith, Esq., HEDAYATI LAW GROUP, P.C., Melville, New York 11747
Counsel for Plaintiff: Virginia G. Alvarez, Esq., New York, NY
Counsel for Defendant: Herbert A. Smith, Esq., HEDAYATI LAW GROUP, P.C., Melville, New York 11747
Douglas E. Hoffman, J.
The following papers, numbered 1 to, were read on this application to/for VACATE JUDGMENT
Notice of Motion 017/ Petition/ OSC - Affidavits - Exhibit No(s)1-2 Answering Affidavits - Exhibits No(s) 3-5 Replying Affidavits No(s) 6-7, 8-10
By prior Decision and Order of this Court, dated April 24, 2020, it was ordered that motion sequence 001, filed by Plaintiff Luz S. ("Plaintiff") to "vacate the [February 2011] judgment of divorce with index number [redacted] and for any other relief deemed just and proper" was granted solely to the extent that the Court was to conduct an evidentiary hearing upon the motion. In her motion, Plaintiff alleged that the 2010 filings in this uncontested matrimonial action were fraudulent, in that what purported to be her signatures (on the filed Verified Complaint, Plaintiff's Affidavit, and Affidavit of Regularity) were not signed by her. This court, on consent of all parties and counsel, set the evidentiary hearing upon the motion for May 22, 2020, including provisions for remote appearances and receipt of documents in evidence [see April 24, 2020 Decision and Order].
Subsequent to the April 24, 2020 Decision and Order, and before the scheduled May 22, 2020 hearing, the court received a stipulation in this action, which is attached to the herein order, wherein both parties conceded that the signatures in the underlying divorce were not authentic:
WHEREFORE, the Order to Show Cause presently pending before the Court is settled in part insomuch as it is agreed by and between the parties having reviewed the documents filed in the instant action in 2010, purported to be bearing the signatures of the plaintiff and the defendant herein do not in fact bear their signatures.
That the signatures on said documents in the 2010 filing were not actually signed by the plaintiff nor the defendant herein themselves.
That the instant stipulation is signed by counsel upon review of the stipulation with their respective clients and having received their respective clients' consent to enter into this stipulation and sign on their behalf.
/s/ Herbert Smith, Esq., Attorney for Defendant
/s/ Virginia G. Alvarez, Esq., Attorney for Plaintiff
Therefore, both parties now certified that none of the signatures in the underlying divorce filing, Verified Complaint, Plaintiff's Affidavit, or Defendant's Affidavit were actually the signatures of either the plaintiff or defendant herein. Neither party explains how the so-called uncontested divorce documents came to be filed in this court, whether at the behest of one of the parties or otherwise. Nevertheless, there is no dispute that the underlying 2010 divorce filing and the 2011 judgment of divorce were fraudulently obtained on the basis of fraudulent signatures.
As the Court of Appeals stated in 2003, a court has broad powers to vacate its own judgment "for sufficient reason and in the interests of substantial justice," including, in addition to the reasons listed in CPLR § 5015(a) (some of which reasons are limited to default judgments, although some subsections, including fraud, are not limited to default judgments):
Under CPLR 5015(a), a court is empowered to vacate a default judgment for several reasons, including excusable neglect; newly-discovered evidence; fraud, misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order. These categories represent a codification of the principal grounds upon which courts have traditionally vacated default judgments as part of their "inherent discretionary power" (see Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C5015:11, at 476 [1992] ). It thus follows that section 5015(a) does not provide an exhaustive list as to when a default judgment may be vacated. Indeed, the drafters of that provision intended that courts retain and exercise their inherent discretionary power in situations that warranted vacatur but which the drafters could not easily foresee (see id. ; 3d Preliminary Report of Advisory Comm. on Practice and Procedure, 1959 NY Legis Doc. No. 17, at 204).
In addition to the grounds set forth in section 5015(a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice (see Ladd v. Stevenson, 112 NY 325, 332, 19 N.E. 842 [1889]
Woodson v. Mendon Leasing Corp. , 100 NY2d 62, 68 (2003).
In the Ladd v. Stevenson , 112 NY 325, 332 (1889) case cited by the Court of Appeals in Woodson , the 1889 Court of Appeals stated "The whole power of the court to relieve from judgments taken through ‘mistake, inadvertence, surprise, or excusable neglect’ is not limited by [then in effect] section 724; but in the exercise of its control over its judgments it may open them upon the application of any one for sufficient reason in the furtherance of justice. Its power to do so does not depend upon any statute, but is inherent, and it would be quite unfortunate if it did not possess it to the fullest extent." See also State of New York Mortg. Agency v. Braun , 182 AD3d 63, 78 (2d Dept 2020) ("In appropriate instances, an order, or even a judgment, may be vacated where it is inconsistent with the relief being granted") (citing Woodson ); Matter of Cassini , 182 AD3d 13, 55—56 (2d Dept 2020) (vacating a default judgment, citing Woodson and Ladd , stating that "a court's inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through fraud, mistake, inadvertence, surprise or excusable neglect").
In the instant case, every single document filed in 2010 (alleged by the parties in their allegedly uncontested divorce action) was fraudulently signed. The entire action is permeated by these fraudulent submissions. This complete fraud on the court requires the court to vacate its own 2010 judgment of divorce in the interests of substantial justice, and to dismiss the 2010 fraudulently-filed complaint in this Index number (without prejudice to the actual party-spouses filing for divorce, whether in this or another appropriate jurisdiction, if either of them so desires).
Accordingly, IT IS HEREBY ORDERED, ADJUDGED and DECLARED that the February 2011 Judgment of Divorce signed by a prior Justice of this Court on February 1, 2011, and entered by the County Clerk of this Court on February 16, 2011 is VACATED and VOIDED;
IT IS FURTHER ORDERED, ADJUDGED and DECLARED that the instant matrimonial action Index [redacted] (commenced by Summons with Notice and a Verified Complaint, neither of which was actually signed by Plaintiff) is hereby DISMISSED, without prejudice to a later filing by either spouse, in a new Index number, whether in this jurisdiction or another jurisdiction, if appropriate.