Craig v Craig, 2011 NY Slip Op 08460 [89 AD3d 586]

November 22, 2011

Appellate Division, First Department

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The Dominique Group, PLLC, New York (Joyce Elie of counsel), for appellant.

Order, Supreme Court, New York County (Saralee Evans, J.), entered January 26, 2010, which, inter alia, denied as time-barred plaintiff’s motion to vacate a 1995 judgment of divorce, unanimously affirmed, without costs.

Plaintiff filed the instant action in 2009 seeking to vacate the judgment of divorce on the ground of fraud. She claims that she was unaware that papers she signed in 1995 pertained to a divorce action and that she did not learn of the divorce until 2008. In an affidavit filed in a related proceeding, plaintiff stated that she knew of the divorce proceedings before the 1995 judgment of divorce was entered. Therefore, plaintiff had until 2001 to assert her present claim ( see CPLR 213 [8]). Plaintiff’s claim is time-barred even if she did not know of the divorce proceedings before the entry of the judgment. Plaintiff concedes that she knew that defendant remarried in 2003. As she could with reasonable diligence have discovered in 2003 that defendant had divorced her some time before his remarriage, she had until 2005 to assert her claim ( see id. ). Concur—Tom, J.P., Andrias, Catterson, Acosta and Renwick, JJ.