HALL v. SHELL POINT MORTGAGE SERVICING NY (2021)

ORDERED that the order is affirmed, without costs.

In this unlawful entry and detainer proceeding (RPAPL 713 [10]), petitioner seeks to be restored to possession of a house he claimed to own, from which he alleged he had been illegally evicted by respondent. In a decision dated September 6, 2019, following a nonjury trial, the Civil Court dismissed the petition, finding that petitioner presented no evidence that he was the owner of the house or that the house was his residence. Shortly thereafter, petitioner moved, in effect pursuant to CPLR 4404 (b), to set aside the September 6, 2019 decision and for a new trial on the ground that, due to the illegal lockout, petitioner had been unable to retrieve from the premises his personal documents that he needed at the nonjury trial and that he had now obtained a copy of the documents as proof to present to the Civil Court. By order dated September 30, 2019, the court denied petitioner's motion, finding that petitioner sought different relief than that requested in his motion papers.

We affirm, albeit on a different ground. Petitioner has not demonstrated, under the circumstances presented, that he should be given a second opportunity to prove that he was the owner of the house or that the house was his residence. He claims that the necessary documents were unavailable to him at the time because he did not have access to his house, but he has not demonstrated that there was no other way to prove his case. While “CPLR 4404 (b) permits the court, after a nonjury trial, to set aside its judgment and make new findings or order a new trial on an issue” (Carney v Carney, 236 AD2d 574, 575 [1997] [citation omitted]) based upon newly-discovered evidence (see Da Silva v Savo, 97 AD3d 525 [2012]), petitioner has not claimed that the documents he sought to rely on were newly discovered. Rather, he claims that they were in the house all along. Furthermore, in order for relief to be granted under CPLR 4404 (b) based on newly-discovered evidence, the movant must show that this evidence would probably have produced a different result had it been introduced at trial (see Matter of Shu Jiao Zhao v Wei Rong, 188 AD3d 1220 [2020]; Ambrose v Ambrose, 176 AD3d 1148 [2019]; Matter of Torregroza v Gomez, 85 AD3d 932 [2011]). As petitioner failed to include the documents in his motion papers and the record does not otherwise demonstrate that this evidence would probably have produced a different result, we find no basis to disturb the denial of petitioner's motion (see Matter of Shu Jiao Zhao v Wei Rong, 188 AD3d at 1221; Ambrose v Ambrose, 176 AD3d at 1151; cf. Matter of Torregroza v Gomez, 85 AD3d at 933).

We note that we do not consider those documents annexed to petitioner's brief which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]) and, in any event, they do not constitute incontrovertible evidence to support petitioner's claim (cf. Kirp v Caleb's Path Realty Corp., 19 AD2d 744 [1963]; cf. also Crawford v Merrill Lynch, Pierce, Fenner & Smith, 35 NY2d 291 [1974]).

Accordingly, the order is affirmed.

WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.