Opinion
June 18, 1999
Appeal from Order of Supreme Court, Erie County, Flaherty, J. — Vacate Judgment.
PRESENT: LAWTON, J. P., HAYES, WISNER, HURLBUTT AND SCUDDER, JJ.
Order unanimously affirmed without costs. Memorandum: We exercise our discretion to treat the appeal, taken from the decision, as taken from the order (see, CPLR 5520 [c]; Progressive Ins. Co. v. Rudd Spray Serv., 236 A.D.2d 874). Supreme Court properly denied defendant's motion for postjudgment relief. Insofar as the motion may be viewed as one pursuant to CPLR 4404 (b), we conclude that it was untimely (see, CPLR 4405; Casey v. Slattery, 213 A.D.2d 890, 891; Bertan v. Richmond Mem. Hosp. Health Ctr., 131 A.D.2d 799, 800-801). Insofar as the motion may be viewed as one to vacate the judgment pursuant to CPLR 5015 (a) (2), we conclude that it was improperly predicated upon evidence available at trial and upon posttrial events. "Only evidence which was in existence but undiscoverable with due diligence at the time of judgment may be characterized as newly discovered evidence" (Matter of Commercial Structures v. City of Syracuse, 97 A.D.2d 965, 966).