May 22, 2013
Specialized Realty Services, LLC, appellant,
Town of Tuxedo, et al., respondents. Index No. 9364/07
Howard T. Schaub, Valley Stream, N.Y., for appellant.
Jacobwitz & Gubits, LLP, Walden, N.Y. (Donald G. Nichol of counsel), for respondents.
MARK C. DILLON, J.P. CHERYL E. CHAMBERS LEONARD B. AUSTIN SHERI S. ROMAN, JJ.
DECISION & ORDER
In an action, inter alia, for a judgment declaring that the plaintiff's real property is exempt from certain land-use and building code regulations, the plaintiff appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated October 25, 2011, which denied its motion for leave to renew its opposition to that branch of the defendants' motion which was for summary judgment, which had been granted in an order of the same court dated July 14, 2009, and pursuant to CPLR 5015(a)(2) and (3) to vacate a judgment of the same court dated August 4, 2009, which, upon the order dated July 14, 2009, is in favor of the defendants and against it, in effect, declaring, among other things, that the subject real property is not exempt from the relevant land-use and building code regulations.
ORDERED that the order dated October 25, 2011, is affirmed, with costs.
A court of original jurisdiction may entertain a motion for leave to renew or to vacate a prior order or judgment on the ground of newly discovered evidence even after an appellate court has affirmed the original order or judgment. Nonetheless, in order to imbue the appellate decision with a degree of certainty, on a postappeal motion for leave to renew or to vacate, the movant bears a heavy burden of showing due diligence in presenting the new evidence to the Supreme Court (see Estate of Essig v 5670 58 St. Holding Corp., 66 A.D.3d 822, 822-823; see also Sealey v Westend Gardens Hous. Dev. Fund Co., Inc., 97 A.D.3d 653, 654-655; Andrews v New York City Hous. Auth., 90 A.D.3d 962, 963; Levitt v County of Suffolk, 166 A.D.2d 421, 422-423).
Here, on a prior appeal, this Court affirmed a judgment, in effect, declaring that the plaintiff's real property is not exempt from certain land-use and building code regulations (see Specialized Realty Servs., LLC v Town of Tuxedo, 80 A.D.3d 690). Since the plaintiff offered no reasonable explanation for its failure to have discovered the purportedly relevant new evidence by the time it opposed the defendants' prior summary judgment motion, it failed to meet this heavy burden (see Sealey v Westend Gardens Hous. Dev. Fund Co., Inc., 97 A.D.3d at 654-655; Estate of Essig v 5670 58 St. Holding Corp., 66 A.D.3d at 823; Levitt v County of Suffolk, 166 A.D.2d at 423). In any event, even if the plaintiff had demonstrated the requisite reasonable justification, denial of the motion would have been warranted because the allegedly new facts offered would not have changed the prior determination (see Hughes v Welsbach Elec. Co., 101 A.D.3d 684; Kaya v B & G Holding Co., LLC, 101 A.D.3d 685; Arthur J. Gallagher & Co. v Marchesa, 96 A.D.3d 791, 792; Abrams v Berelson, 94 A.D.3d 782, 784; Matter of Choy v Mai Ling Lai, 91 A.D.3d 772). Accordingly, the Supreme Court properly denied those branches of the plaintiff's motion which were for leave to renew its opposition to the defendants' motion for summary judgment and pursuant to CPLR 5501(a)(2) to vacate the judgment on the ground of newly discovered evidence.
Moreover, the plaintiff was not entitled to vacatur of the judgment pursuant to CPLR 5015(a)(3), as it failed to establish the existence of fraud, misrepresentation, or misconduct on the part of the defendants in securing the judgment that would warrant such relief (see Tornheim v Blue & White Food Prods. Corp., 88 A.D.3d 869; Welz v Welz, 83 A.D.3d 696, 697; Sicurelli v Sicurelli, 73 A.D.3d 735; Badgett v Badgett, 2 A.D.3d 379). Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was pursuant to CPLR 5501(a)(3) to vacate the judgment on those grounds.
DILLON, J.P., CHAMBERS, AUSTIN and ROMAN, JJ., concur.