Marine Midland Bank N. A. v. Cramer — 177 A.D.2d 1009

Majority

p. 1009

Marine Midland Bank N. A., Respondent, v Morris Cramer, Appellant.

Order unanimously affirmed without costs. Memorandum: Defendant failed to establish that the alleged newly discovered evidence, offered on his motion to vacate plaintiff’s judgment against him (see, Marine Midland Bank v Daubney Bowling Enters., 136 AD2d 963 , lv denied 72 NY2d 810 ), could not have been discovered prior to judgment through the exercise of ordinary diligence or that the proffered evidence would, if accurate, have affected the result in the prior proceeding (see, CPLR 5015 [a] [2]). Accordingly, we conclude that Supreme Court did not abuse its discretion in denying defendant’s motion (see, Mully v Drayn, 51 AD2d 660 ; Wittemeyer v Martin, 32 AD2d 597 ; see also, Matter of Commercial Structures v City of Syracuse, 97 AD2d 965 ).

We have examined the other issues raised on appeal and

p. 1010

find them to be without merit. (Appeal from Order of Supreme Court, Onondaga County, Mordue, J.—Summary Judgment.) Present—Doerr, J. P., Denman, Boomer, Green and Davis, JJ.

Cases cited

Marine Midland Bank, N. A. v. Bob Daubney Bowling Enterprises Inc. 136 AD2d 963 N.Y. App. Div. 1988-01-29 p. 1009