CENTURY BUSINESS CREDIT CORPORATION v. Howard Maidenbaum, Defendant. (2002)

Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about April 5, 2001, which, inter alia, denied defendant N. Norman Muller's motion pursuant to CPLR 5015(a)(2) and (3) to vacate a prior judgment and prior order, unanimously affirmed, with costs.

Defendant's “newly discovered” evidence consisted solely of facts which were previously known and argued, and therefore did not provide a basis for vacatur (see Richard B. v. Sandra B.B., 209 A.D.2d 139, 144, 625 N.Y.S.2d 127, lv. dismissed 87 N.Y.2d 861, 639 N.Y.S.2d 312, 662 N.E.2d 793).   In any event, the “new” evidence, which purported to show a failure or delay by plaintiff in declaring a default of the guarantees or underlying factoring agreements, would have been irrelevant since defendant Muller, a guarantor, explicitly waived all notices and demands of any kind, and the agreements specifically stated that a failure or delay in declaring a default would not operate as a waiver.   Defendant Muller's doctrine of the election of remedies argument is merely a restatement of his waiver argument, and to the extent it may be deemed a new theory, it does not constitute newly discovered evidence (see Matter of Laura W., 226 A.D.2d 126, 127, 640 N.Y.S.2d 54).