Terio v. Terio

190 A.D.2d 666, 593 N.Y.S.2d 467, 1993 N.Y. App. Div. LEXIS 856

Opinion

— In a matrimonial action in which the parties were divorced by a judgment dated March 31, 1989, the defendant husband appeals, as limited by his brief, from (1) an order of the Supreme Court, Putnam County (Dickinson, J.), dated February 28, 1990, which referred his motion to vacate the judgment of divorce on the basis of fraud and newly-discovered evidence to another court, (2) an order of the same court, dated March 22, 1990, which denied the motion on the ground that the court lacked jurisdiction to determine the motion, and (3) an order of the same court dated April 17, 1990, which sua sponte vacated the order dated March 22, 1990, and denied the defendant’s motion on the merits.

Ordered that the appeals from the orders dated February 28, 1990, and March 22,1990, are dismissed as academic, since those orders were vacated by the order dated April 17, 1990; and it is further,

Ordered that the order dated April 17, 1990 is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

We find no merit to the defendant’s contention that the Supreme Court improperly denied his motion to set aside the judgment of divorce on the ground of newly-discovered evidence (see, CPLR 5015 [a] [2]). The motion was addressed to the sound discretion of the trial court and the court did not improvidently exercise that discretion (see, Matter of Zappala v Hann, 175 AD2d 596; Camala Co. v Inland Credit Corp., 161 AD2d 532). Balletta, J. P., Eiber, O’Brien and Santucci, JJ., concur.