Alevy v. Herz

Alevy v Herz (2024 NY Slip Op 04802) Alevy v Herz 2024 NY Slip Op 04802 Decided on October 03, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: October 03, 2024 Before: Kern, J.P., Oing, Kapnick, Kennedy, JJ. Index No. 158691/21 Appeal No. 2673-2674 Case No. 2023-03053 2023-04581 [*1]Allen Alevy etc., et al., Plaintiffs-Respondents, v Rifka Herz, Defendant-Appellant. Rifka Herz, appellant pro se. Westland Real Estate Group, New York (John W. Hofsaess of counsel), for respondents. Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about April 11, 2023, which denied defendant's motion to vacate a judgment, unanimously affirmed, without costs. The court correctly denied defendant's motion to vacate a California money judgment based on lack of personal jurisdiction or fraud (see Ionescu v Brancoveanu , 246 AD2d 414, 416 [1st Dept 1998]). Defendant appeared in the California action through an answer. While she asserted the defense of personal jurisdiction in her answer, she failed to move on that defense, as required by California law (see Cal Code Civ Pro 1014, 410.50; Fireman's Fund Ins. Co. v Sparks Constr., Inc. , 114 Cal App 4th 1135, 1145 [2004]). As such, she submitted to personal jurisdiction in California, which foreclosed a collateral attack on jurisdiction here in New York (see Ionescu v Brancoveanu , 246 AD2d at 416). Defendant's submission to jurisdiction also precludes her assertion of fraud on the court. Defendant had the opportunity to raise her challenges to plaintiffs' evidence in the California proceeding, but instead ultimately defaulted at trial. As such, the California judgment is res judicata and the judgment cannot now be attacked on the basis of alleged fraud on the court (see id. ). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 3, 2024