Alevy v Herz, 2024 NY Slip Op 04802 [231 AD3d 423]

October 3, 2024

Appellate Division, First Department

[*1]

Allen Alevy et al., Respondents,

v

Rifka Herz, 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 Civ Proc Code §§ 1014, 410.50; Fireman’s Fund Ins. Co. v Sparks Constr., Inc. , 114 Cal App 4th 1135, 1145, 8 Cal Rptr 3d 446, 453-454 [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. ). Concur—Kern, J.P., Oing, Kapnick, Kennedy, JJ..