Luz S. v Cesar P.

[*1] Luz S. v Cesar P. 2020 NY Slip Op 50873(U) Decided on July 28, 2020 Court Of Claims Hoffman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 28, 2020
Court of Claims

Luz S., Plaintiff,

against

Cesar P., Defendant.



XXXXX



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/forVACATE JUDGMENT

Notice of Motion 017/ Petition/ OSC - Affidavits - ExhibitNo(s)1-2 Answering Affidavits - Exhibits No(s) 3-5 Replying Affidavits No(s) 6-7, 8-10

HOFFMAN, DOUGLAS, J.S.C.:

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 authenti" target="_blank">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.

$SIG$

DATE 7/28/2020

DOUGLAS E. HOFFMAN, J.S.C.