           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
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                                                               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
