| Coastal Sheet Metal Corp. v RJR Mech. Inc. |
| 2011 NY Slip Op 04603 [85 AD3d 420] |
| June 2, 2011 |
| Appellate Division, First Department |
| Coastal Sheet Metal Corp., Respondent, v RJR MechanicalInc., et al., Appellants, et al., Defendants. |
—[*1] Sullivan Gardner PC, New York (Brian Gardner of counsel), for respondent.
Order, Supreme Court, New York County (Karen S. Smith, J.), entered August 10, 2010,which denied vacatur of a judgment, same court and Justice, entered April 22, 2009, after a jurytrial, awarding plaintiff $280,000.95 as against defendants-appellants, inclusive of interest, costsand disbursements, unanimously affirmed, without costs.
Supreme Court did not abuse its discretion in refusing to vacate the judgment pursuant toCPLR 5015 (a) (2). The record reveals that the "newly-discovered evidence" upon whichdefendants base their motion is a settlement so-ordered by the United States District Court for theDistrict of New Jersey on November 30, 2009.
Evidence only qualifies as "newly-discovered" if it was in existence at the time of theoriginal order or judgment, but was undiscoverable with due diligence (Greenwich Sav. Bankv JAJ Carpet Mart, 126 AD2d 451, 453 [1987]). Because the settlement of the New Jerseyaction occurred some seven months after judgment in the instant action was entered, it is not"newly-discovered evidence" within the meaning of CPLR 5015 (a) (2). Concur—Acosta,J.P., Sweeny, Moskowitz, Renwick and Richter, JJ.