         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1168
CA 11-00033
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.


IN THE MATTER OF JEFFREY THRALL,
PETITIONER-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

CNY CENTRO, INC. AND CENTRAL NEW YORK REGIONAL
TRANSPORTATION AUTHORITY, RESPONDENTS-APPELLANTS.
(APPEAL NO. 1.)


FERRARA, FIORENZA, LARRISON, BARRETT & REITZ, P.C., EAST SYRACUSE
(CRAIG M. ATLAS OF COUNSEL), FOR RESPONDENTS-APPELLANTS.

ROBERT LOUIS RILEY, SYRACUSE, FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme   Court, Onondaga County (James
P. Murphy, J.), entered November 9, 2009   in a proceeding pursuant to
CPLR article 78. The order, inter alia,    granted in part petitioner’s
motion to vacate a prior judgment, which   dismissed the amended
petition.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the motion in its entirety
and dismissing the amended petition, and as modified the order is
affirmed without costs.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination of respondents, his former
employers, denying his application for disability pension benefits,
and in appeal No. 1 respondents appeal from an order that, inter alia,
granted in part petitioner’s motion pursuant to CPLR 5015 (a) (3)
seeking to vacate the judgment dismissing his amended petition. By
way of background, we note that Amalgamated Transit Union Local 580
(Union), which represented petitioner, initially filed a grievance on
petitioner’s behalf under the collective bargaining agreement (CBA)
between the Union and respondents based on the denial of the
application. The grievance was submitted to a Grievance Review Board
formed pursuant to section 2.07 (b) of the CBA. After respondents
advised the Union that the grievance was dismissed based upon the
Grievance Review Board’s vote, petitioner commenced this proceeding.
Supreme Court (Roy, J.) dismissed the amended petition on the merits
and, on a prior appeal, this Court, inter alia, affirmed the judgment
dismissing the amended petition (Matter of Thrall v CNY Centro, Inc.,
17 AD3d 1026).
                                 -2-                          1168
                                                         CA 11-00033

     In appeal No. 1, we conclude that Supreme Court (Murphy, J.)
erred in granting in part petitioner’s motion seeking to vacate the
judgment pursuant to CPLR 5015 (a) (3) inasmuch as the instant motion
is barred by res judicata (see Jericho Group Ltd. v Midtown Dev.,
L.P., 67 AD3d 431, lv denied 14 NY3d 712). Petitioner twice moved
unsuccessfully for leave to renew with respect to the dismissal of his
amended petition, and in each instance his appeals from the orders
denying his respective motions were deemed abandoned and dismissed
based upon his failure to perfect the appeals in a timely fashion (see
22 NYCRR 1000.12 [b]; Williams v Williams, 52 AD3d 1271). The ground
on which petitioner now relies in seeking vacatur was “no less
apparent at the time of the making of the . . . motion[s]” seeking
leave to renew than at the time of the instant motion (Bianco v
Dougherty, 54 AD2d 681). In any event, on the merits, we conclude
that petitioner failed to substantiate his allegations of fraud
sufficiently to warrant vacatur of the judgment (see Miller v
Lanzisera, 273 AD2d 866, 868, appeal dismissed 95 NY2d 887, rearg
denied 96 NY2d 731). We therefore deny the motion in its entirety and
dismiss the amended petition in appeal No. 1. Respondents have raised
no issue with respect to that part of the order denying their cross
motion, and they therefore are deemed to have abandoned any issues
with respect thereto (see Ciesinski v Town of Aurora, 202 AD2d 984).

     In appeal No. 2, respondents appeal from those parts of an order
and judgment that, inter alia, annulled the determination. In view of
our decision in appeal No. 1, we dismiss as moot the appeal from the
order and judgment in appeal No. 2 (see generally Matter of Hearst
Corp. v Clyne, 50 NY2d 707, 714-715). In addition, “in order to
prevent [the order and] judgment which is unreviewable for mootness
from spawning any legal consequences or precedent” (id. at 718; see
Matter of Funderburke v New York State Dept. of Civ. Serv., 49 AD3d
809, 811), we also vacate that order and judgment (see Funderburke, 49
AD3d at 811).




Entered:   November 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
