Stipo v Carpenito
2012 NY Slip Op 01451 [92 AD3d 864]
February 21, 2012
Appellate Division, Second Department
As corrected through Wednesday, March 28, 2012


John L. Stipo, Respondent,
v
Thomas Carpenito,Appellant.

—[*1]Steven E. DeYoung, P.C. (Stephen D. Chakwin, Jr., New York, N.Y., of counsel), forappellant.

Monteleone & Monteleone, Mount Kisco, N.Y. (Gregory A. Monteleone of counsel), forrespondent.

In an action to enforce a promissory note, the defendant appeals from an order of theSupreme Court, Westchester County (Murphy, J.), dated June 10, 2011, which denied his motionpursuant to CPLR 5015 (a) (2) to vacate a money judgment of the same court dated January 18,2011, which is in favor of the plaintiff and against him in the principal sum of $40,000.

Ordered that the order is affirmed, with costs.

In a prior order dated December 7, 2010, the Supreme Court granted the plaintiff's motion forsummary judgment on the complaint after rejecting, as "insufficient to defeat [the] plaintiff'smotion," the "conclusory allegations" that the defendant had asserted in opposition. A moneyjudgment dated January 18, 2011, in the principal sum of $40,000, was thereafter entered. Thedefendant then made the postjudgment motion now under review in which, relying on documentsthat predated the judgment, he sought to have the judgment vacated pursuant to CPLR 5015 (a)(2).

We agree with the Supreme Court that the defendant failed to demonstrate any entitlement torelief pursuant to CPLR 5015 (a) (2). The defendant failed adequately to explain why theserecently offered documents could not have been produced much sooner, at the time of the priormotion for summary judgment (seegenerally Ferdico v Zweig, 82 AD3d 1151 [2011]). In any event, the purportedly newlydiscovered evidence would not have "produced a different result" on the plaintiff's motion forsummary judgment (CPLR 5015 [a] [2]; see generally Matter of American Comm. for Weizmann Inst. of Science vDunn, 10 NY3d 82, 96 [2008]; Cizler v Cizler, 19 AD2d 819 [1963]).

Accordingly, the order appealed from must be affirmed. Mastro, A.P.J., Angiolillo, Eng andCohen, JJ., concur.


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