Opinion
February 22, 1988
Appeal from the Supreme Court, Nassau County (Wager, J., Levitt, J., Roncallo, J.).
Ordered that the order is affirmed, with costs.
We find that the defendants' motion to vacate the judgments based upon newly discovered evidence was properly denied. "Only evidence which was in existence but undiscoverable with due diligence at the time of judgment may be characterized as newly discovered evidence" (see, Matter of Commercial Structures v City of Syracuse, 97 A.D.2d 965, 966). A report of an Administrative Law Judge, relied upon by the defendants, cannot constitute newly discovered evidence as it was not issued and therefore was not in existence until after the judgments were entered.
We further find that the testimony and evidence presented to the Administrative Law Judge at the administrative hearing conducted prior to the entry of the judgments fail to meet the criteria for newly discovered evidence. The defendants were aware of and participated in these proceedings, and the testimony and evidence were not hidden. The defendants were required but failed to establish that they could not have, with due diligence, discovered such evidence prior to the entry of the judgments (see, Matter of Commercial Structures v City of Syracuse, supra; Federal Deposit Ins. Corp. v Schwartz, 116 A.D.2d 619). Bracken, J.P., Kunzeman, Eiber and Harwood, JJ., concur.