Stipo v. Carpenito

92 A.D.3d 864, 939 N.Y.2d 508

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 2012
• Status: Published

Opinion

In a prior order dated December 7, 2010, the Supreme Court granted the plaintiffs motion for summary judgment on the complaint after rejecting, as “insufficient to defeat [the] plaintiffs motion,” the “conclusory allegations” that the defendant had asserted in opposition. A money judgment dated January 18, 2011, in the principal sum of $40,000, was thereafter entered. The defendant then made the postjudgment motion now under review in which, relying on documents that predated the judgment, he sought to have the judgment vacated pursuant to CPLR 5015 (a) (2).

We agree with the Supreme Court that the defendant failed to demonstrate any entitlement to relief pursuant to CPLR 5015 (a) (2). The defendant failed adequately to explain why these recently offered documents could not have been produced much sooner, at the time of the prior motion for summary judgment (see generally Ferdico v Zweig, 82 AD3d 1151 [2011]). In any event, the purportedly newly discovered evidence would not have “produced a different result” on the plaintiffs motion for summary judgment (CPLR 5015 [a] [2]; see generally Matter of American Comm. for Weizmann Inst. of Science v Dunn, 10 NY3d 82, 96 [2008]; Cizler v Cizler, 19 AD2d 819 [1963]).

Accordingly, the order appealed from must be affirmed. Mastro, A.PJ., Angiolillo, Eng and Cohen, JJ, concur.