44 A.D.3d 868
N.Y. App. Div.
2007

In the Matter of STATE FARM INSURANCE COMPANY, Respondent, v JEANNE COLANGELO et al., Respondents. NATIONAL CONTINENTAL INSURANCE COMPANY, Proposed Additional Respondent-Appellant, et al., Proposed Additional Respondents.

Appellate Division of the Supreme Court of the State of New York, Second Department

843 N.Y.S.2d 667 | 40 A.D.3d 868

[843 NYS2d 667]—In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, National Continental Insurance Company appeals from an order of the Supreme Court, Westchester County (Carey, J.H.O.), entered October 16, 2006, which denied its motion, inter alia, pursuant to CPLR 5015 (a) (2) to vacate a judgment of the same court entered October 12, 2005, granting the petition and permanently staying the arbitration, based on newly-discovered evidence.

Ordered that the order is affirmed, with costs.

To succeed on a motion to vacate a judgment on the ground of newly-discovered evidence, the movant must establish, among other things, that the evidence could not have been discovered earlier through the exercise of due diligence (see CPLR 5015 [a] [2]; Roslyn Sav. Bank v Kline, 17 AD3d 441 [2005]; Kleet Lbr. Co., Inc. v Saw Horse Remodelers, Inc., 13 AD3d 414, 415 [2004]; Feldstein v Rounick, 295 AD2d 398, 399-400 [2002]; Zaccaria v Russell, 288 AD2d 468 [2001]; Contractors Cas. & Sur. Co. v 535 Broadhollow Realty, 276 AD2d 738 [2000]; Exclusive Envelope Corp. v Tal-Spons Corp., 187 AD2d 555, 555-556 [1992]). Here, the appellant failed to establish that the evidence that it relied on could not have been timely discovered through the exercise of due diligence. Accordingly, the Supreme Court properly denied that branch of the appellant‘s motion which was pursuant to CPLR 5015 (a) (2) to vacate the judgment entered October 12, 2005.

The appellant‘s remaining contentions either are without merit, are barred by the law of the case doctrine (see Stone v Stone, 39 AD3d 534, 535 [2007]; Matter of Suzuki-Peters v Peters, 37 AD3d 726 [2007]; Matter of Shondell J. v Mark D., 18 AD3d 551 [2005]; Jacobs v Macy‘s E., Inc., 17 AD3d 318, 320 [2005]; Palumbo v Palumbo, 10 AD3d 680, 682 [2004]), or need not be reached in light of our determination. Rivera, J.P., Covello, Angiolillo and Dickerson, JJ., concur.