Opinion
May 22, 1990
Appeal from the Supreme Court, New York County (Martin Evans, J.).
The claim of judicial bias was previously considered and rejected by this court on plaintiff's direct appeal from that court's order of January 26, 1986. ( 128 A.D.2d 1030, lv denied 70 N.Y.2d 606.) The Supreme Court at that time found that plaintiffs had discharged Broder for cause and that he was therefore not entitled to attorney's fees. (On remand as directed in 64 N.Y.2d 977.) The requested recusal from this postjudgment motion was based on an incompetent source, a newspaper editorial. Insofar as the proffered "newly discovered" evidence concerned the admissibility of testimony to impeach or refresh the recollection of appellant's own witness, it was neither probative nor admissible. Other "evidence", which sought to establish that the order was the result of a fraud upon the court by the adverse party, was material related to hearings held four years before the trial resulting in the January 26, 1986 order. At best, that material served to undermine the credibility of an adverse witness, an insufficient basis for a new trial (CPLR 5015 [a] [2]; Mully v. Drayn, 51 A.D.2d 660 [4th Dept]).
Concur — Ross, J.P., Asch, Milonas, Kassal and Smith, JJ.