Coastal Sheet Metal Corp. v RJR Mech. Inc.

Jun 2, 2011
5248 400303/06
Versions:85 AD3d 420
2011 NY Slip Op 04603

Loanzon Sheikh LLC, New York (Umar A. Sheikh of counsel), for appellants.

Sullivan Gardner PC, New York (Brian Gardner of counsel), for respondent.

Order, Supreme Court, New York County (Karen S. Smith, J.), entered August 10, 2010, which denied vacatur of a judgment, same court and Justice, entered April 22, 2009, after a jury trial, awarding plaintiff $280,000.95 as against defendants-appellants, inclusive of interest, costs and disbursements, unanimously affirmed, without costs.

Supreme Court did not abuse its discretion in refusing to vacate the judgment pursuant to CPLR 5015 (a) (2). The record reveals that the “newly-discovered evidence” upon which defendants base their motion is a settlement so-ordered by the United States District Court for the District of New Jersey on November 30, 2009.

Evidence only qualifies as “newly-discovered” if it was in existence at the time of the original order or judgment, but was undiscoverable with due diligence (Greenwich Sav. Bank v JAJ Carpet Mart, 126 AD2d 451, 453 [1987]). Because the settlement of the New Jersey action occurred some seven months after judgment in the instant action was entered, it is not “newly-discovered evidence” within the meaning of CPLR 5015 (a) (2). Concur—Acosta, J.P., Sweeny, Moskowitz, Renwick and Richter, JJ.