Marousis v Stamos

[*1] Marousis v Stamos 2006 NY Slip Op 51743(U) [13 Misc 3d 128(A)] Decided on September 14, 2006 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 14, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1898 W C.

Tina Pappas Marousis, Respondent,

against

Anthony Stamos, Appellant.

Appeal from an order of the City Court of Yonkers, Westchester County (Arthur J. Doran, J.), entered November 14, 2005. The order denied defendant's motion to vacate the small claims judgment entered October 4, 2002.

Order affirmed without costs.

Pursuant to CPLR 5015 (a) (2), a motion to vacate a judgment may be granted, for, among other reasons, "newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404 . . . ." In the instant case, we find the evidence proffered by defendant to be irrelevant to the determination that defendant was liable to plaintiff for the principal sum of $542.50, plus interest and costs. In any event, defendant failed to demonstrate that he exercised due diligence in attempting to produce the newly presented evidence. Under the circumstances, the court properly denied defendant's motion to vacate the judgment (see Kleet Lbr. Co., Inc. v Saw Horse Remodelers, Inc., 13 AD3d 414 [2004]; Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 377 [2001]; Ocean Diagnostic Imaging, P.C. v General Assur. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51290[U] [App Term, 9th & 10th Jud Dists]).

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: September 14, 2006