Zaccaria v. Russell

Nov 26, 2001
Versions:288 A.D.2d 468
733 N.Y.S.2d 878
2001 N.Y. App. Div. LEXIS 11395

—In an action to recover on a mortgage, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Brucia, J.H.O.), dated May 23, 2000, as denied his motion pursuant to CPLR 5015 (a) (2) and (3) to vacate a judgment of the same court, dated November 15, 1999, which is in favor of the defendants and against him dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was to vacate the judgment pursuant to CPLR 5015 (a) (2), as the plaintiff failed to show that the alleged newly-discovered evidence could not have been discovered with due diligence before entry of the judgment (see, Orix Credit Alliance v Grace Indus., 274 AD2d 424; Dan’s Supreme Supermarkets v Redmont Realty Co., 261 AD2d 353). The Supreme Court also properly denied that branch of the motion which was to vacate the judgment pursuant to CPLR 5015 (a) (3), as the plaintiff failed to show that it had been procured by fraud, misrepresentation, or other misconduct (see, Caiola v Allcity Ins. Co., 257 AD2d 586).

The plaintiff’s remaining contentions are without merit. Santucci, J. P., Goldstein, Townes and Cozier, JJ., concur.