| Specialized Realty Servs., LLC v Town of Tuxedo |
| 2013 NY Slip Op 03661 [106 AD3d 987] |
| May 22, 2013 |
| Appellate Division, Second Department |
| Specialized Realty Services, LLC,Appellant, v Town of Tuxedo et al., Respondents. |
—[*1] Jacobwitz & Gubits, LLP, Walden, N.Y. (Donald G. Nichol of counsel), forrespondents.
In an action, inter alia, for a judgment declaring that the plaintiff's real property isexempt from certain land-use and building code regulations, the plaintiff appeals from anorder of the Supreme Court, Orange County (Slobod, J.), dated October 25, 2011, whichdenied its motion for leave to renew its opposition to that branch of the defendants'motion which was for summary judgment, which had been granted in an order of thesame court dated July 14, 2009, and pursuant to CPLR 5015 (a) (2) and (3) to vacate ajudgment of the same court dated August 4, 2009, which, upon the order dated July 14,2009, is in favor of the defendants and against it, in effect, declaring, among other things,that the subject real property is not exempt from the relevant land-use and building coderegulations.
Ordered that the order dated October 25, 2011, is affirmed, with costs.
A court of original jurisdiction may entertain a motion for leave to renew or to vacatea prior order or judgment on the ground of newly discovered evidence even after anappellate court has affirmed the original order or judgment. Nonetheless, in order toimbue the appellate decision with a degree of certainty, on a postappeal motion for leaveto renew or to vacate, the movant bears a heavy burden of showing due diligence inpresenting the new evidence to the Supreme Court (see Estate of Essig v 5670 58 St. Holding Corp., 66 AD3d822, 822-823 [2009]; seealso Sealey v Westend Gardens Hous. Dev. Fund Co., Inc., 97 AD3d 653,654-655 [2012]; Andrews vNew York City Hous. Auth., 90 AD3d 962, 963 [2011]; Levitt v County ofSuffolk, 166 AD2d 421, 422-423 [1990]).
Here, on a prior appeal, this Court affirmed a judgment, in effect, declaring that theplaintiff's real property is not exempt from certain land-use and building code regulations(see Specialized Realty Servs.,LLC v Town of Tuxedo, 80 AD3d 690 [2011]). Since the plaintiff offered noreasonable explanation for its failure to have discovered the purportedly relevant newevidence by the time it opposed the defendants' prior summary judgment motion, it failedto meet this heavy burden (see Sealey v Westend Gardens Hous. Dev. Fund Co.,Inc., 97 AD3d at 654-655; Estate of Essig v 5670 58 St. Holding Corp., 66AD3d at 823; Levitt v County of Suffolk, 166 AD2d at 423). In any event, evenif the plaintiff had demonstrated the requisite reasonable justification, denial of [*2]the motion would have been warranted because theallegedly new facts offered would not have changed the prior determination (see Hughes v Welsbach Elec.Co., 101 AD3d 684 [2012]; Kaya v B & G Holding Co., LLC, 101 AD3d 685 [2012];Arthur J. Gallagher & Co. vMarchese, 96 AD3d 791, 792 [2012]; Abrams v Berelson, 94 AD3d 782, 784 [2012]; Matter of Choy v Mai LingLai, 91 AD3d 772 [2012]). Accordingly, the Supreme Court properly deniedthose branches of the plaintiff's motion which were for leave to renew its opposition tothe defendants' motion for summary judgment and pursuant to CPLR 5015 (a) (2) tovacate the judgment on the ground of newly discovered evidence.
Moreover, the plaintiff was not entitled to vacatur of the judgment pursuant to CPLR5015 (a) (3), as it failed to establish the existence of fraud, misrepresentation, ormisconduct on the part of the defendants in securing the judgment that would warrantsuch relief (see Tornheim vBlue & White Food Prods. Corp., 88 AD3d 869 [2011]; Welz v Welz, 83 AD3d696, 697 [2011]; Sicurelli vSicurelli, 73 AD3d 735 [2010]; Badgett v Badgett, 2 AD3d 379 [2003]). Accordingly, theSupreme Court properly denied that branch of the plaintiff's motion which was pursuantto CPLR 5015 (a) (3) to vacate the judgment on those grounds. Dillon, J.P., Chambers,Austin and Roman, JJ., concur.