Plaintiff, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered March 1, 2007, which denied its motion to set aside the verdict and for a new trial.

Per Curiam.

Order (Jose A. Padilla, Jr., J.), entered March 1, 2007, reversed, motion granted and new trial ordered, with $30 costs to abide the event.

While we agree with the motion court that the post-trial documentary evidence submitted by defendant did not constitute newly discovered evidence (see CPLR 5015[a][2]), it was sufficiently indicative of fraud, misconduct or misrepresentation to warrant vacatur of the judgment pursuant to CPLR 5015(a)(3) (see Shouse v Lyons, 4 AD3d 821 [2004]; Prizzi v Anzalone, 261 AD2d 374 [1999]). Defendant's sole witness at trial testified that the merchandise allegedly sold by plaintiff to defendant was never received, relying heavily on his assertion that defendant had no leasehold or other interest in the 8th floor office space to which the goods were claimed to have been delivered. That testimony, euphemistically described by defense counsel at oral argument on appeal as "inappropriate," was relied upon by the trial court to deny plaintiff's breach of contract claim and thus goes to the "very means by which the judgment was procured" (Jericho Group, Ltd. v Midtown Dev., L.P., 47 AD3d 463 [2008]). Plaintiff's documentary evidence a lease agreement apparently executed by defendant as tenant, which by its terms covered the subject 8th floor office space and was in effect during the relevant time period directly refuted the testimony of defendant's witness with respect to a matter material to the verdict.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 28, 2008