Summary
affirming denial of CPLR 5015 motion where '"new evidence' does not refute the essential findings of the trial court, and thus it cannot be said that had the 'new evidence' been introduced at trial, the trial's outcome would probably have been different."
Summary of this case from Kolchins v. Evolution Markets Inc.Opinion
June 23, 1998
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
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 A.D.2d 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 A.D.2d 949). Plaintiffs' "new evidence" does not refute the essential findings of the trial court, and thus it cannot be said that had the "new evidence" been introduced at trial, the trials outcome would probably have been different ( see, CPLR 5015 [a] [2]; Gonzalez v. Chalpin, 233 A.D.2d 367).
Concur — Lerner, P. J., Rubin, Williams, Mazzarelli and Andrias, JJ.