Macaluso v Macaluso

Macaluso v Macaluso 2014 NY Slip Op 06064 Decided on September 10, 2014 Appellate Division, Second 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 on September 10, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
L. PRISCILLA HALL
SANDRA L. SGROI
JOSEPH J. MALTESE, JJ.
2013-00348
(Index No. 17173/06)

[*1]Anthony N. Macaluso, Sr., etc., appellant,

v

Joseph Macaluso, etc., respondent, et al., defendant.

Mayer, Ross & Hagan, P.C., Patchogue, N.Y. (Christopher R. Ross of counsel), for appellant.

Anthony P. Gallo, P.C., Commack, N.Y., for respondent.

DECISION & ORDER

In an action, inter alia, pursuant to Business Corporation Law § 716 to remove Santo F. Macaluso, Jr., as an officer and director of the defendant S & M Heating Corp., the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated October 2, 2012, as denied his motion, in effect, pursuant to CPLR 5015(a)(4) to vacate a judgment entered October 20, 2010, which, upon an order of the same court dated June 18, 2010, was in favor of the defendant Joseph Macaluso, as executor of the estate of Santo F. Macaluso, Jr., and against him individually, on the ground that it was entered against an improper party.

ORDERED that the order dated October 2, 2012, is affirmed insofar as appealed from, with costs.

Where there is no legal or equitable basis to enter a judgment against a particular party, such judgment must be vacated pursuant to CPLR 5015(a)(4) (see Mazelier v 634 W. 135, LLC, 22 AD3d 361, 364). Here, however, the judgment entered October 20, 2010, was properly issued, pursuant to an order dated June 18, 2010, against the plaintiff individually, as a remedy for the plaintiff's failure to comply with his personal obligations under the parties' stipulation of settlement. Contrary to the plaintiff's contention, while he may have commenced this action "in the right of S & M Heating Corp.," the record is clear that the corporation was not a party to the stipulation. Rather, the agreement, which was placed on the record in open court, provided that the plaintiff would discontinue the action and would receive certain benefits from, and undertake certain obligations to, his late brother, Santo F. Macaluso, Jr. Accordingly, the Supreme Court properly denied the plaintiff's motion, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment.

RIVERA, J.P., HALL, SGROI and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court