SUPREME COURT OF THE STATE OF NEW YORK

 Appellate Division, Fourth Judicial Department

624 

CA 13-00998 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ. 

 

 

KAI LIN, PLAINTIFF-APPELLANT, 

 

V MEMORANDUM AND ORDER

 

DEPARTMENT OF DENTISTRY, UNIVERSITY OF 

ROCHESTER MEDICAL CENTER, UNIVERSITY DENTAL 

FACULTY GROUP, DR. CARLO ERCOLI, DR. JANE 

BREWER, OSBORN, REED & BURKE, LLP, CHRISTIAN C. 

CASINI, ESQ., DEFENDANTS-RESPONDENTS, 

ET AL., DEFENDANT. 

 

KAI LIN, PLAINTIFF-APPELLANT PRO SE. 

THE WOLFORD LAW FIRM LLP, ROCHESTER (LEA T. NACCA OF COUNSEL), FOR 

DEFENDANTS-RESPONDENTS DEPARTMENT OF DENTISTRY, UNIVERSITY OF 

ROCHESTER MEDICAL CENTER, UNIVERSITY DENTAL FACULTY GROUP, DR. CARLO 

ERCOLI, OSBORN, REED & BURKE, LLP AND CHRISTIAN C. CASINI, ESQ. 

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (ELIZABETH M. BERGEN OF COUNSEL), 

FOR DEFENDANT-RESPONDENT DR. JANE BREWER. 

 

Appeal from a judgment and order (one paper) of the Supreme Court, 

Monroe County (Ann Marie Taddeo, J.), entered January 15, 2013. The 

judgment and order granted the motions of defendants to dismiss the 

complaint, prohibited plaintiff from initiating any further actions 

against defendants without leave of court and granted legal fees and costs 

to defendants-respondents. 

It is hereby ORDERED that the judgment and order so appealed from 

is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action asserting causes of 

action for, inter alia, fraud and spoliation of evidence after her prior 

dental malpractice action was dismissed and the order dismissing that 

action was affirmed by this Court (Kai Lin v Strong Health [appeal No. 

1], 82 AD3d 1585, lv dismissed in part and denied in part 17 NY3d 899, 

rearg denied 18 NY3d 878). Plaintiff appeals from a judgment and order 

that, inter alia, granted defendants= motions to dismiss the instant 

complaint and imposed sanctions in the form of an award of legal fees 

and costs to defendants-respondents (defendants). We reject plaintiff=s 

contention that Supreme Court erred in dismissing the complaint. To the 

extent that the complaint alleged Afraud, misrepresentation, or other 

misconduct of an adverse party@ committed during the course of the prior 

litigation, plaintiff=s sole remedy was a motion to vacate the court=s 
-2- 624 

CA 13-00998 

prior order pursuant to CPLR 5015 (a) (3). AA litigant=s remedy for alleged 

fraud in the course of a legal proceeding >lies exclusively in that lawsuit 

itself, i.e., by moving pursuant to CPLR 5015 to vacate the [order] due 

to its fraudulent procurement, not a second plenary action collaterally 

attacking the [order]= @ (Vinokur v Penny Lane Owners Corp., 269 AD2d 226, 

226; see St. Clement v Londa, 8 AD3d 89, 90). In addition, Athe tort 

of third-party negligent spoliation of evidence . . . is not cognizable 

in this state@ (Ortega v City of New York, 9 NY3d 69, 73). We have 

considered plaintiff=s other contentions with respect to the dismissal 

of the complaint, and we conclude that they are without merit. Finally, 

we reject plaintiff=s contention that the court erred in imposing 

sanctions. Absent a Aclear abuse of discretion, we will not disturb the 

court=s determination that the conduct in question was frivolous and that 

it warranted the imposition of@ sanctions in the form of legal fees and 

costs (Matter of Bedworth-Holgado v Holgado, 85 AD3d 1589, 1590). We 

decline, however, to grant defendants= request for the imposition of 

sanctions based on plaintiff=s pursuit of this appeal. 

Entered: August 8, 2014 Frances E. Cafarell

Clerk of the Court