SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

303 

CA 16-01457 

PRESENT: WHALEN, P.J., SMITH, CENTRA, CURRAN, AND SCUDDER, JJ. 

 

MAA-SHARDA, INC., AND HINABEN P. PATEL, ALSO 

KNOWN AS H.P. PATEL, PLAINTIFFS-APPELLANTS,

V MEMORANDUM AND ORDER

FIRST CITIZENS BANK & TRUST CO., J. BARRY DUMSER, 

INDUS PVR, LLC, AND GOONJIT “JETT” MEHTA, 

DEFENDANTS-RESPONDENTS. 

TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (ROBERT J. LUNN OF

COUNSEL), AND FRANK A. ALOI, FOR PLAINTIFFS-APPELLANTS. 

NIXON PEABODY LLP, ROCHESTER (MEGHAN K. MCGUIRE OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS FIRST CITIZENS BANK & TRUST CO. AND J. BARRY

DUMSER. 

WOODS OVIATT GILMAN LLP, ROCHESTER (JOHN C. NUTTER OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS INDUS PVR, LLC AND GOONJIT “JETT” MEHTA. 

 

Appeal from an order of the Supreme Court, Ontario County

(Matthew A. Rosenbaum, J.), entered November 17, 2015. The order,

inter alia, granted the motions of defendants to dismiss the amended

complaint and dismissed the amended complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Previously, Indus PVR, LLC, a defendant in this

matter, commenced a foreclosure proceeding against, inter alia, MAASharda, Inc., a plaintiff in this matter. A judgment of foreclosure

was granted, and was later affirmed by this Court (Indus PVR LLC v

MAA-Sharda, Inc., 140 AD3d 1666, lv denied in part and dismissed in

part 28 NY3d 1059). After the judgment in the foreclosure action was

granted but before this Court affirmed it, plaintiffs commenced this

action asserting, inter alia, a cause of action for “fraud on the

court” based upon allegations that defendants committed fraud in the

prior foreclosure proceeding. Plaintiffs now appeal from an order

that, inter alia, dismissed the amended complaint. We affirm. “To

the extent that the [amended] complaint alleged fraud,

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 prior order pursuant to CPLR 5015

(a) (3). A litigant’s remedy for alleged fraud in the course of a

legal proceeding lies exclusively in that lawsuit itself, i.e., by
-2- 303 

CA 16-01457 

moving pursuant to CPLR 5015 to vacate the [judgment] due to its

fraudulent procurement, not a second plenary action collaterally

attacking the” judgment (Kai Lin v Department of Dentistry, Univ. of

Rochester Med. Ctr., 120 AD3d 932, 932, lv denied 24 NY3d 916

[internal quotation marks omitted]; see Stewart v Citimortgage, Inc.,

122 AD3d 721, 722). 

Contrary to plaintiffs’ further contention, this case does not

fit within the exception set forth in Newin Corp. v Hartford Acc. &

Indem. Co. (37 NY2d 211, 217), which applies when the alleged fraud or

perjury “is merely a means to the accomplishment of a larger

fraudulent scheme,” i.e., one “greater in scope than [that] in the

prior proceeding” (Retina Assoc. of Long Is. v Rosberger, 299 AD2d

533, 533, appeal dismissed and lv denied 99 NY2d 624 [internal

quotation marks omitted]; see Pieroni v Phillips Lytle LLP, 140 AD3d

1707, 1709, lv denied 28 NY3d 901; cf. Specialized Indus. Servs. Corp.

v Carter, 68 AD3d 750, 751-752). We agree with Supreme Court that

“plaintiff[s’] conclusory allegation of a larger fraudulent scheme

appears to be ‘a transparent and patently insufficient attempt to

bring this action within the Newin exception’ ” (Cattani v Marfuggi,

74 AD3d 553, 555, lv dismissed 15 NY3d 900, lv denied 18 NY3d 806). 

We have considered plaintiffs’ remaining contentions and conclude

that none requires reversal or modification of the order.

Entered: April 28, 2017 Frances E. Cafarell

Clerk of the Court