Jakobleff v. Jakobleff

• Decision Date: 04 February 1985
• Citation: 484 N.Y.S.2d 892,108 A.D.2d 725
• Parties: Gloria JAKOBLEFF, Respondent, v. William JAKOBLEFF, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 892

484 N.Y.S.2d 892

108 A.D.2d 725

Gloria JAKOBLEFF, Respondent, v. William JAKOBLEFF, Appellant.

Supreme Court, Appellate Division,

Second Department.

Feb. 4, 1985.

Putney, Twombly, Hall & Hirson, New York City (George E. Reed, Jr., New York City, of counsel), for appellant.

Before MOLLEN, P.J., and BRACKEN, O'CONNOR and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the defendant husband appeals from so much of an order of the Supreme Court, Westchester County, entered July 6, 1983, as granted the motion of Julius Cohn and Cerrato, Sweeney and Cohn (movant attorneys), the attorneys who formerly represented the plaintiff wife, to correct nunc pro tunc or to vacate a provision of a judgment of divorce dated November 13, 1979, relieving him of the obligation of providing medical insurance for the plaintiff wife.

Order reversed insofar as appealed from, on the law and the facts and as a matter of discretion, without costs or disbursements, and motion denied.

The facts regarding the background of the instant matter are accurately stated in the memorandum decision of Special Term (see Jakobleff v. Jakobleff, 119 Misc.2d 931, 464 N.Y.S.2d 976). We conclude, however, that Special Term improvidently exercised its discretion, under the circumstances at bar, by granting the application of the movant attorneys pursuant to its inherent power to vacate or modify a judgment in the interest of justice. Subdivision (a) of CPLR 5015 provides that "court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct" (emphasis supplied). An "interested person" who has standing to bring a motion to vacate or modify a judgment or order has been defined, as follows:

"To seek relief from a judgment or order, all that is necessary is that some legitimate interest of the moving party will be served and that judicial assistance will avoid injustice" (5 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 5015.15, p. 50-252, cited with approval in Oppenheimer v. Westcott, 47 N.Y.2d 595, 602, 419 N.Y.S.2d 908, 393 N.E.2d 982; see, also, Sanchez v. Sanchez, 79 A.D.2d 651, 652, 433 N.Y.S.2d 830).

However, "the court believes that the person requesting the setting aside of the judgment or order is not a proper person to raise the issue, it should refuse to grant the requested relief" (5 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 5015.15, p. 50-252). The movant attorneys, who were defendants in a legal malpractice action brought by plaintiff alleging that their negligence in failing to review the proposed judgment of divorce submitted by defendant's attorney was a major cause of the loss of her medical insurance, do not have a "legitimate interest" which will be served by the intervention of the court to grant relief from the divorce decree, either pursuant to the statutory grounds enumerated in subdivision (a) of CPLR 5015 or by invoking its inherent power to do so in the interest of justice. We find it significant that plaintiff, whose legitimate interests are at stake in this matter, has not sought the modification of the health insurance provision in the divorce decree. Nor has she submitted a brief on the instant appeal. Her legal malpractice action against the movants has been settled.

We also disagree with the conclusion of Special Term that the movants have standing to seek modification of the divorce decree, as they had been subjected to plaintiff's legal malpractice action by reason of "fraud, misrepresentation, or other misconduct" by defendant or his attorneys (CPLR 5015, subd. par. 3; Jakobleff v. Jakobleff, 119 Misc.2d 931, 935, 464 N.Y.S.2d...