ENTERPRISES INC v. STEWART ICE CREAM COMPANY INC

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Supreme Court, Appellate Division, Third Department, New York.

S.A.B. ENTERPRISES INC., Appellant, v. STEWART'S ICE CREAM COMPANY INC. et al., Respondents.

Decided: September 18, 1997

Before CARDONA, P.J., and MIKOLL, MERCURE, CASEY and YESAWICH, JJ. Sussman, Bergstein, Wotorson & Whateley (Stephen Bergstein, of counsel), Goshen, for appellant. Snyder, Kiley, Toohey & Corbett (James S. Cox, of counsel), Saratoga Springs, for Stewart's Ice Cream Company Inc., respondent. Angelo F. Scaturro, County Attorney, Catskill, for County of Greene, respondent. James W. Warren, Coxsackie, for Village of Athens, respondent.

Appeal from an order of the Supreme Court (Connor, J.), entered November 4, 1996 in Greene County, which denied plaintiff's motion to vacate a prior judgment entered against it.

Plaintiff is a prior owner of certain real property located in the Village of Athens, Greene County.   In 1974, defendant County of Greene conducted a tax foreclosure sale with respect to this property and ultimately sold it to defendant Stewart's Ice Cream Company Inc. Plaintiff thereafter brought an action pursuant to RPAPL article 15 seeking to invalidate the tax sale.   At the conclusion of the trial in 1990, a jury determined that the sale was properly conducted and a judgment was rendered in favor of defendants.   We subsequently affirmed this judgment on appeal (187 A.D.2d 875, 590 N.Y.S.2d 568, lv. denied 81 N.Y.2d 708, 598 N.Y.S.2d 767, 615 N.E.2d 224).   In June 1996, approximately six years after the trial, plaintiff moved to vacate the judgment pursuant to CPLR 5015(a)(2) and (3).   Supreme Court denied the motion and plaintiff appeals.

 Initially, plaintiff contends that the judgment should be vacated pursuant to CPLR 5015(a)(2) based upon newly discovered evidence.   In particular, plaintiff claims that the tax notices sent to other property owners whose properties were foreclosed upon at the same time as plaintiff's property contain different typeprint, thereby suggesting that the notice sent to plaintiff was fraudulently prepared after the sale.   It is well settled that in order to vacate a judgment based upon newly discovered evidence, the movant must establish that the new evidence, if introduced at trial, would probably have produced a different result and that such evidence could not, despite due diligence, have been discovered in time to move for a new trial under CPLR 4404 (see, Prote Contr. Co. v. Board of Educ. of City of N.Y., 230 A.D.2d 32, 39, 657 N.Y.S.2d 158;  Gonzalez v. Chalpin, 233 A.D.2d 367, 650 N.Y.S.2d 585;  Travelers Ins. Cos. v. Howard E. Conrad Inc., 233 A.D.2d 890, 891-892, 649 N.Y.S.2d 586, 587;  see also, CPLR 5015[a][2] ).   Such an application is addressed to the trial court's discretion (see, Rubinow v. Harrington, 194 A.D.2d 822, 598 N.Y.S.2d 1011) and, absent an abuse of that discretion, the court's ruling will not be disturbed (see, Lehoczky v. New York State Elec. & Gas Corp., 180 A.D.2d 994, 580 N.Y.S.2d 1022, appeal dismissed 80 N.Y.2d 924, 589 N.Y.S.2d 311, 602 N.E.2d 1127).

 Based upon our review of the record, we find no abuse of discretion in Supreme Court's denial of plaintiff's motion pursuant to CPLR 5015(a)(2).   Plaintiff has been in possession of the subject records since at least 1993, if not earlier, but has failed to set forth a legitimate excuse for its delay until 1996 in making its motion.   In addition, because the subject records are of a public nature, they have been available to plaintiff since the date of the sale.   Finally, the differences in typeprint appearing on the notices sent to other property owners do not, in our view, establish that the notice sent to plaintiff was fraudulently prepared, especially in view of the affidavit of the County Treasurer, which indicates that different persons using different typewriters prepared the notices which were sent to plaintiff and others during the time period in question.   For this reason, we also find that plaintiff has failed to demonstrate fraud or misrepresentation warranting vacatur of the judgment under CPLR 5015(a)(3).

ORDERED that the order is affirmed, with costs.

CASEY, Justice.

CARDONA, P.J., and MIKOLL, MERCURE and YESAWICH, JJ., concur.

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