Ejam Holding Co. v Gilbert

[*1] Ejam Holding Co. v Gilbert 2010 NY Slip Op 50309(U) [26 Misc 3d 141(A)] Decided on March 3, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 3, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, J.
570284/08

Ejam Holding Co., Petitioner-Landlord-Appellant- Cross-Respondent,

against

Lois Gilbert, Respondent-Tenant-Respondent- Cross-Appellant, -and- The Audio Works Group, Ltd., Respondent.

Landlord appeals, as limited by its brief, from that portion of an order of the Civil Court of the City of New York, New York County (Peter M. Wendt, J.), dated March 12, 2009, which denied its motion to vacate a post-trial judgment pursuant to CPLR 5015. Tenant cross-appeals from that portion of the aforesaid order which denied her cross motion for rule (22 NYCRR) 130-1.1 sanctions.

Per Curiam.

Order (Peter M. Wendt, J.), dated March 12, 2009, insofar as appealed from, affirmed, without costs.

We sustain the denial of landlord's post-trial motion to vacate the final judgment dismissing the holdover petition.[FN1] With respect to that branch of landlord's motion to vacate the final judgment on the ground of purportedly newly discovered evidence (see CPLR 5015[a][2]), landlord failed to establish that the "newly discovered" evidence tenant's pre-trial deposition testimony and the conclusory affidavit of an investigator retained by landlord after the judgment was rendered could not have been discovered or produced, with due diligence, prior to the conclusion of trial (see Bongiasca v Bongiasca, 289 AD2d 121, 122 [2001]; Cornwell v Safeco Ins. Co. of Am., 42 AD2d 127, 134-135 [1972]). Moreover, the one-page affidavit of the investigator was replete with hearsay, and therefore insufficient to demonstrate that the "evidence" would probably have produced a different result at the underlying trial (see CPLR 5015[a][2]; see generally American Committee for Weizmann Inst. of Science v Dunn, 10 NY3d 82, 96 [2008]). Because landlord failed to adduce admissible evidence substantiating its [*2]assertion that tenant procured the judgment through fraud, Civil Court properly denied that branch of landlord's motion seeking vacatur of the judgment pursuant to CPLR 5015(a)(3) (see Mohrmann v Lynch-Mohrmann, 24 AD3d 735 [2005]; see also Aames Capital Corp. v Davidsohn, 24 AD3d 474 [2005]).

We decline to disturb Civil Court's denial of tenant's cross motion seeking rule (22 NYCRR) 130-1.1 sanctions against landlord, a decision committed to the trial court's sound discretion (see Nestor v New York State Div. of Hous. & Comm. Renewal, 257 AD2d 395, 397 [1999]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 03, 2010 Footnotes

Footnote 1:We note that landlord previously withdrew its direct appeal from the final judgment.