| Matter of Ayodele Ademoli J. |
| 2008 NY Slip Op 09793 [57 AD3d 668] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mIn the Matter of Ayodele Ademoli J., an Infant. Catholic GuardianSociety and Home Bureau, Respondent; Elizabeth O., Appellant. |
—[*1] Magovern & Sclafani, New York, N.Y., for respondent. Steven Banks, New York, N.Y. (Tamara Steckler and Marcia Egger of counsel), attorney for thechild.
In a proceeding pursuant to Social Services Law § 384-b to terminate the mother's parentalrights by reason of her mental illness, the mother appeals from an order of the Family Court, QueensCounty (Salinitro, J.), dated June 5, 2007, which denied her motion to vacate an order of fact-findingand disposition of the same court dated May 18, 2005, terminating her parental rights and transferringguardianship and custody of the child to the Commissioner of Social Services of the City of New Yorkand Catholic Home Bureau for Dependent Children.
Ordered that the order dated June 5, 2007, is affirmed, without costs or disbursements.
The Family Court did not improvidently exercise its discretion in denying the appellant's motionpursuant to CPLR 5015 (a) (2). CPLR 5015 (a) (2) provides that the court that issues an order mayrelieve a party from it upon such terms as may be just where newly-discovered evidence exists which, ifintroduced at the trial, would probably have produced a different result and which could not have beendiscovered in time to move for a new trial. Newly-discovered evidence is evidence which was inexistence but undiscoverable with due diligence at the time of judgment (see Sieger v Sieger, 51 AD3d 1004,1005 [2008]; Matter of Jenna R., 207 AD2d 403, 404 [1994]; Pezenik v Milano,137 AD2d 748 [1988]). The newly-discovered evidence must be material, cannot be merely [*2]cumulative, and cannot be of such a nature as would merely impeach thecredibility of an adverse witness (see Matterof Catapano, 17 AD3d 673, 674 [2005]).
We agree with the Family Court that the report of a psychiatric expert, which was not in existenceat the time of the Family Court's order of fact-finding and disposition, does not meet the criteria fornewly-discovered evidence (see Matter of Jenna R., 207 AD2d 403 [1994]; Pezenik vMilano, 137 AD2d at 748-749). We further note that the report merely attacked the credibility ofthe expert testimony presented by the petitioner, and provided evidence cumulative to the experttestimony presented by the appellant (see Matter of Jenna R., 207 AD2d 403 [1994]). Miller,J.P., Dickerson, Leventhal and Belen, JJ., concur.