Dan's Supreme Supermarkets, Inc. v. Redmont Realty Co.

261 A.D.2d 353, 690 N.Y.S.2d 272, 1999 N.Y. App. Div. LEXIS 4502

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1999
• Status: Published

Opinion

—In an action for a judgment declaring that the plaintiff effectively exercised an option to renew a lease, the plaintiff appeals from an order of the Supreme Court, Queens County (Lisa, J.), dated March 20, 1998, which denied its motion pursuant to CPLR 5015 (a) (2) and (3) to vacate an order and judgment (one paper) of the same court, entered October 31, 1996, granting the defendant’s motion for summary judgment dismissing the complaint and declaring that the plaintiff failed to effectively exercise its option to renew the lease.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied that branch of the plaintiff’s motion which was to vacate the order and judgment entered October 31, 1996, based on newly discovered evidence. The evidence claimed to be “newly discovered” could have been discovered prior to the entry of the order and judgment granting the defendant’s motion for summary judgment (see, Matter of Carroll v Bene, 246 AD2d 649). The plaintiff failed to exercise due diligence in obtaining that evidence.

In any event, the allegedly new evidence consisted of unsworn statements made in a taped telephone conversation. As such, the statements are inadmissible as evidence and are insufficient to create an issue of fact to defeat the motion for summary judgment (see, Gomes v Courtesy Bus Co., 251 AD2d 625; Adams v Alexander’s Dept. Store, 226 AD2d 130; Jacobs v Schleicher, 124 AD2d 785).

The plaintiffs remaining contentions are without merit. Altman, J. P., Goldstein, Florio and McGinity, JJ., concur.