In the Matter of Gil Ram v. Hershowitz

• Decision Date: 18 October 2011
• Parties: In the Matter of Gil RAM, petitioner-appellant,v.Miriam HERSHOWITZ, respondent-respondent, et al., respondent.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 891
931 N.Y.S.2d 103
2011 N.Y. Slip Op. 07433

In the Matter of Gil RAM, petitioner-appellant,
v.
Miriam HERSHOWITZ, respondent-respondent, et al., respondent.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 18, 2011.

[931 N.Y.S.2d 104]

Gil Ram, Brooklyn, N.Y., petitioner-appellant pro se.Thomas Torto, New York, N.Y., for respondent-respondent.DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

[88 A.D.3d 891] In a proceeding, in effect, pursuant to CPLR article 52 to [88 A.D.3d 892] enforce a money judgment by, inter alia, imposing a constructive trust on certain real property, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Knipel, J.), dated March 9, 2009, which granted those branches of Miriam Hershowitz's motion which were (a) pursuant to CPLR 317 to vacate a judgment of the same court entered February 13, 2007, upon her failure to appear or answer the petition, and (b), upon vacatur of that judgment, to dismiss the petition on the ground that it is barred by the doctrine of res judicata, denied the petition and dismissed the proceeding.

ORDERED that the order and judgment is affirmed, with costs.

The parties previously have been before this Court on appeals in prior, related proceedings and actions, and the relevant procedural history is set forth in this Court's most recent decision and order dated September 21, 2010 ( see Matter of Ram v. Hershowitz, 76 A.D.3d 1022, 908 N.Y.S.2d 106; see also Matter of Fontani v. Hershowitz, 12 A.D.3d 672, 784 N.Y.S.2d 890; Fontani v. Hershowitz, 12 A.D.3d 636, 784 N.Y.S.2d 903). In essence, the petitioner in the present proceeding seeks to enforce a 1999 money judgment in his favor filed in the Civil Court of the City of New York, Kings County, on June 10, 1999, by, inter alia, imposing a constructive trust on certain real property titled to Miriam Hershowitz (hereinafter Hershowitz), who is the widow of the judgment debtor.

In an order and judgment dated March 9, 2009, which is the subject of this appeal, the Supreme Court properly granted that branch of Hershowitz's motion which was pursuant to CPLR 317 to vacate a judgment entered February 13, 2007, against Hershowitz upon her failure to appear or answer the instant petition, filed in 2006. Pursuant to CPLR 317, a court may permit a person who has been served with a notice of petition other than by personal delivery to defend a...