        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

111
CA 14-01212
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND VALENTINO, JJ.


GORDON H. DICK, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STATE UNIVERSITY CONSTRUCTION FUND,
DEFENDANT-APPELLANT.


LAW OFFICES OF THERESA J. PULEO, SYRACUSE (P. DAVID TWICHELL OF
COUNSEL), FOR DEFENDANT-APPELLANT.

HISCOCK & BARCLAY, LLP, SYRACUSE (BRITTANY E. AUNGIER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Oswego County (James
W. McCarthy, J.), entered September 13, 2013. The order denied the
motion of defendant to vacate an order granting plaintiff leave to
file a late notice of claim.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff was allegedly injured in January 2012,
when he fell while working on a construction site owned by defendant,
a public corporation. Approximately one year after the accident,
plaintiff filed an application for leave to serve a late notice of
claim (see General Municipal Law § 50-e [5]). Defendant did not
oppose the application, but sought an adjournment the day before the
return date on the application. Supreme Court denied defendant’s
request for an adjournment and, by order dated March 8, 2013, granted
plaintiff’s application. Thereafter, defendant moved to vacate that
order pursuant to CPLR 5015 (a) (3) on the ground that, in his
application, plaintiff had misrepresented that a witness to his fall
was defendant’s employee, thereby incorrectly imputing knowledge of
the accident to defendant.

     The court properly denied defendant’s motion “inasmuch as the
evidence establishes that defendant had knowledge of the alleged
[misrepresentation] before entry of the [order]” (Chase Lincoln First
Bank, N.A. v DeHaan, 89 AD3d 1476, 1477; see Matter of Livingston
County Support Collection Unit v Zamiara, 309 AD2d 1259, 1260).
Indeed, defendant’s own submissions establish that it knew prior to
the March 8 order that it did not have any employees at the
construction site at the time of plaintiff’s fall and that it knew the
witness in question had not been its employee. We do not consider
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                                                         CA 14-01212

defendant’s contention that the court should have granted its request
to adjourn plaintiff’s application. In the context of this appeal
from an order denying a motion to vacate pursuant to CPLR 5015 (a)
(3), the issue before us is whether defendant was able to show that
plaintiff engaged in fraud, misrepresentation, or other misconduct, of
which it was unaware when the court entered its order (see Chase
Lincoln First Bank, N.A., 89 AD3d at 1477; Livingston County Support
Collection Unit, 309 AD2d at 1260).




Entered:   February 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
