Rubinow v. Harrington

194 A.D.2d 822, 598 N.Y.S.2d 1011, 1993 N.Y. App. Div. LEXIS 5482

Opinion

Mikoll, J. P.

Appeal from an order of the Supreme Court (Ingraham, J.), entered June 13, 1991 in Broome County, which, inter alia, denied plaintiffs motion to reopen a prior judgment based on newly discovered evidence.

A grant of relief under CPLR 5015 (a) (2) reposes within the trial court’s discretion (Buckman v Perry’s Taxi, 24 AD2d 913). A party seeking such relief must show that the evidence could not have been discovered prior to trial and will probably produce a different result at trial. Supreme Court found that the two documents on which plaintiff based his motion to reopen the judgment did not constitute newly discovered evidence in that the documents had been in the possession of plaintiffs prior counsel. Based on these circumstances, Supreme Court found that plaintiff failed to meet the test of due diligence.

We note that the documents offered were unexecuted and were part of the negotiations which concluded with plaintiffs execution of releases running to defendants. Supreme Court, in denying the motion, concluded that the evidence would not have produced a different result after trial. We find no abuse of discretion by Supreme Court and concur in the decision to deny plaintiffs motion.

Yesawich Jr., Crew III, Mahoney and Harvey, JJ., concur. Ordered that the order is affirmed, with costs.