85 A.D.3d 420
N.Y. App. Div.
2011

Coastal Sheet Metal Corp., Respondent, v RJR Mechanical Inc., et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division, First Department, New York

923 N.Y.S.2d 841

Coastal Sheet Metal Corp., Respondent, v RJR Mechanical Inc., et al., Appellants, et al., Defendants. [923 NYS2d 841]

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.