Weinstock v. Handler

Appellate Division of the Supreme Court of New York

Weinstock v. Handler

251 A.D.2d 184, 674 N.Y.S.2d 368, 1998 N.Y. App. Div. LEXIS 7383

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 23, 1998

StatusPublished

Cited by14 cases

This text of 251 A.D.2d 184 (Weinstock v. Handler) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Weinstock v. Handler, 251 A.D.2d 184, 674 N.Y.S.2d 368, 1998 N.Y. App. Div. LEXIS 7383 (N.Y. Ct. App. 1998).

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Opinion

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered November 24, 1997, which denied plaintiffs’ motion pursuant to CPLR 5015 (a) (2) and (3) to vacate a judgment of the same court and Justice, entered July 23, 1996, after a nonjury trial, dismissing their complaint, unanimously affirmed, with costs.

We agree with the trial court that the promissory note and other documentary evidence upon which plaintiffs now rely could have, with due diligence, been located or obtained prior to trial (CPLR 5015 [a] [2]; Prote Contr. Co. v Board of Educ., 230 AD2d 32). Moreover, the documents offered in support of the motion, to a great degree, do no more than raise issues as to the credibility of adverse witnesses and such issues in the present context are not sufficiently indicative of “fraud, misrepresentation, or other misconduct” to warrant vacatur of the judgment pursuant to CPLR 5015 (a) (3) (see, Texido v S & R Car Rentals Toronto, 244 AD2d 949). Plaintiffs’ “new evidence” does not refute the essential findings of the trial court, and [185]*185thus it cannot be said that had the “new evidence” been introduced at trial, the trial’s outcome would probably have been different (see, CPLR 5015 [a] [2]; Gonzalez v Chalpin, 233 AD2d 367). Concur — Lerner, P. J., Rubin, Williams, Mazzarelli and Andrias, JJ.

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—Order, Supreme Court, New York County (Ira Gammerman, J.), entered November 24, 1997, which denied plaintiffs’ motion pursuant to CPLR 5015 (a) (2) and (3) to vacate a judgment of the same court and Justice, entered July 23, 1996, after a nonjury trial, dismissing their complaint, unanimously affirmed, with costs.

We agree with the trial court that the promissory note and other documentary evidence upon which plaintiffs now rely could have, with due diligence, been located or obtained prior to trial (CPLR 5015 [a] [2]; Prote Contr. Co. v Board of Educ., 230 AD2d 32). Moreover, the documents offered in support of the motion, to a great degree, do no more than raise issues as to the credibility of adverse witnesses and such issues in the present context are not sufficiently indicative of “fraud, misrepresentation, or other misconduct” to warrant vacatur of the judgment pursuant to CPLR 5015 (a) (3) (see, Texido v S & R Car Rentals Toronto, 244 AD2d 949). Plaintiffs’ “new evidence” does not refute the essential findings of the trial court, and [185]*185thus it cannot be said that had the “new evidence” been introduced at trial, the trial’s outcome would probably have been different (see, CPLR 5015 [a] [2]; Gonzalez v Chalpin, 233 AD2d 367). Concur — Lerner, P. J., Rubin, Williams, Mazzarelli and Andrias, JJ.

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Bluebook (online)

251 A.D.2d 184, 674 N.Y.S.2d 368, 1998 N.Y. App. Div. LEXIS 7383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weinstock-v-handler-nyappdiv-1998.

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