Rakosi v. Daniel Perla Associates

Order, Supreme Court, New York County (Louis York, J.), entered on or about October 23, 2002, which granted defendants-respondents’ motions to dismiss the complaint as against them and denied plaintiffs cross motion to amend the complaint to add a necessary party, unanimously modified, on the law, to grant plaintiffs cross motion, and otherwise affirmed, without costs.

The action was properly dismissed as against defendants-respondents on the ground that it constitutes a collateral attack upon a prior judgment of foreclosure and sale. Although the evidence demonstrates that plaintiff was named and served in the *432foreclosure action, he defaulted and, rather than moving in that action under CPLR 5015 to vacate the resulting judgment, has impermissibly commenced a new plenary action alleging that the judgment was wrongfully obtained (see Vinokur v Penny Lane Owners Corp., 269 AD2d 226 [2000]).

The motion court should, however, have granted plaintiff’s cross motion to add a necessary party, Deca LLC, which may be inequitably affected by a judgment rendered in the remainder of this case against the nonmoving defendants. Concur—Nardelli, J.P., Ellerin, Williams and Gonzalez, JJ.