| Guardian Life Ins. Co. of Am. v Zaveri |
| 2018 NY Slip Op 51865(U) [62 Misc 3d 128(A)] |
| Decided on December 13, 2018 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Port & Sava (Preeti V. Dawane of counsel), for appellant. Ivars Berzins, P.C. (Ivars Berzins of counsel), for respondent.
Appeal from an order of the District Court of Suffolk County, Second District (John P. Schettino, J.), dated April 26, 2017. The order denied defendant's motion to vacate, on the ground of newly discovered evidence, a judgment of that court entered February 17, 2006, after a nonjury trial, awarding plaintiff the principal sum of $11,088.
ORDERED that the order is affirmed, without costs.
Plaintiff commenced this action to recover the principal sum of $10,572.74 for breach of a loan agreement. After a nonjury trial, judgment was entered on February 17, 2006 in favor of plaintiff in the principal sum of $11,088. Approximately 11 years later, defendant moved, pursuant to CPLR 5015 (a) (2), to vacate the judgment on the ground of newly discovered evidence. In support of the motion, defendant alleged that the newly discovered evidence, consisting of certain life insurance applications, established that plaintiff had not paid him commissions he had earned selling life insurance on behalf of plaintiff. Defendant implies that this newly discovered evidence established that he was entitled to a partial or complete "setoff" against the amount of the judgment. The District Court denied the motion.
We note at the outset that, in his answer to plaintiff's complaint, defendant neither asserted a setoff nor interposed a counterclaim based on the commissions he had allegedly earned. In any event, "newly discovered evidence is evidence which was in existence but undiscoverable with due diligence at the time of the original order or judgment" (Wall St. Mtge. Bankers, Ltd. v Rodgers, 148 AD3d 1088, 1089 [2017]). Here, defendant failed to establish that he had exercised due diligence in seeking to obtain the alleged new evidence at the time of the judgment, since he did not explain why the documents he offered on his motion had not been demanded in his discovery demands served upon plaintiff prior to trial. Moreover, defendant did not establish that the purportedly newly discovered evidence, "if introduced at the trial, would [*2]probably have produced a different result" (CPLR 5015 [a] [2]). Furthermore, the purported evidence is inconclusive as to any amount defendant had earned in commissions.
Accordingly, the order is affirmed.
MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.