Opinion
12-26-2019
COD, LLC, Petitioner-Landlord-Appellant, v. Susan Smith ADELGLASS and Howard Adelglass, Respondents-Tenants-Respondents.
Per Curiam.
Order (Jean T. Schneider, J.), dated September 14, 2018, affirmed, without costs.
Landlord's CPLR 4404(b) motion sought to increase its recovery for rent arrears by an additional $5,061 based upon purportedly newly discovered evidence, namely a stipulation of settlement from a prior summary proceeding between the parties dated March 16, 2017. Evidence only qualifies as "newly-discovered" if it was in existence at the time of the trial, but was inaccessible (see Gagliardi v. State of New York , 148 AD3d 868, 870 [2017] ), and could not have been produced prior to the conclusion of trial with the exercise of due diligence (see Trimarco v. Data Treasury Corp. , 146 AD3d 1008, 1010 [2017] ). This stipulation does not qualify as newly discovered evidence because it was obviously known and accessible to landlord but not introduced at trial (see Da Silva v. Savo , 97 AD3d 525, 526 [2012] ).