108 W. 95th St., HDFC v Guilamo

[*1] 108 W. 95th St., HDFC v Guilamo 2010 NY Slip Op 50559(U) [27 Misc 3d 126(A)] Decided on April 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, JJ
570230/09.

108 West 95th Street, HDFC, Petitioner-Landlord-

against

Juana Guilamo, Respondent-Tenant-Appellant, -and- Guillermo Rodriguez, "John Doe" and/or "Jane Doe," Respondents-Undertenants.

Tenant appeals from an order of the Civil Court of the City of New York, New York County (Gary Marton, J.), dated June 3, 2009, which denied her post-trial motion seeking to vacate a final judgment of the same court, entered on or about February 4, 2009, after a nonjury trial, which awarded possession to landlord in a holdover summary proceeding.

Per Curiam.

Order (Gary Marton, J.), dated June 3, 2009, affirmed, without costs.

Civil Court providently exercised its discretion in denying as untimely (see CPLR 4405) that branch of tenant's motion seeking post-trial relief under CPLR 4404 (see Casey v Slattery, 213 AD2d 890, 891 [1995]; Pioli v Morgan Guar. Trust Co. of New York, 199 AD2d 144, 148 [1993]). Moreover, Civil Court properly denied that branch of tenant's motion seeking a new trial on the basis of purportedly newly discovered evidence (see CPLR 5015[a][2]). Tenant failed to demonstrate that the purportedly newly discovered evidence, which tenant submitted for the first time with her reply papers on her post-trial motion, could not have been discovered 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]). Tenant also failed to demonstrate on the abbreviated record on appeal that the evidence would probably have produced a different result at the underlying trial (see Bongiasca, supra; Cornwell, supra).

We have considered and rejected tenant's remaining argument regarding the manner in which the underlying holdover proceeding was commenced.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: April 07, 2010