Opinion
May 3, 1999
Appeal from the Supreme Court, Queens County (Lisa, J.).
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied that branch of the plaintiff's motion which was to vacate the order and judgment entered October 31, 1996, based on newly discovered evidence. The evidence claimed to be "newly discovered" could have been discovered prior to the entry of the order and judgment granting the defendant's motion for summary judgment (see, Matter of Carroll v. Bene, 246 A.D.2d 649). The plaintiff failed to exercise due diligence in obtaining that evidence.
In any event, the allegedly new evidence consisted of unsworn statements made in a taped telephone conversation. As such, the statements are inadmissible as evidence and are insufficient to create an issue of fact to defeat the motion for summary judgment (see, Gomes v. Courtesy Bus Co., 251 A.D.2d 625; Adams v. Alexander's Dept. Store, 226 A.D.2d 130; Jacobs v. Schleicher, 124 A.D.2d 785).
The plaintiff's remaining contentions are without merit.
Altman, J. P., Goldstein, Florio and McGinity, JJ., concur.