Opinion
October 27, 1997
Appeal from Supreme Court, Westchester County (Nastasi, J.)
Ordered that the order is affirmed, with costs.
Since there was a final judgment on the merits dismissing this special proceeding, under the circumstances of this case, the petitioner should have moved pursuant to CPLR 5015 and not by way of a motion to renew under CPLR 2221 ( see, Matter of Willard v. Town Bd., 216 A.D.2d 861; Able v. Able, 209 A.D.2d 972). In any event, the evidence relied on by the petitioner was not newly discovered, and she did not offer an explanation for her failure to submit that evidence when she made her initial application ( see, Matter of Willard v. Town Bd., supra). Thus, her motion was properly denied.
The petitioner's remaining contentions are academic in light of our determination.
Miller, J.P., Pizzuto, Altman and Goldstein, JJ., concur.