Majority
In an action, inter alia, for a judgment declaring that the plaintiffs 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 CFLR 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 AD3d 822 , 822-823 [2009]; see also Sealey v Westend Gardens Hous. Dev. Fund Co., Inc., 97 AD3d 653 , 654-655 [2012]; Andrews v New York City Hous. Auth., 90 AD3d 962 , 963 [2011]; Levitt v County of Suffolk, 166 AD2d 421 , 422-423 [1990]).
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 AD3d 690 [2011]). 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
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 AD3d 869 [2011]; Welz v Welz, 83 AD3d 696 , 697 [2011]; Sicurelli v Sicurelli, 73 AD3d 735 [2010]; Badgett v Badgett, 2 AD3d 379 [2003]). Accordingly, the Supreme Court properly denied that branch of the plaintiffs motion which was pursuant to CPLR 5015 (a) (3) to vacate the judgment on those grounds. Dillon, J.P, Chambers, Austin and Roman, JJ., concur.
Cases cited
- Essig v. 5670 58 Street Holding Corp. 66 AD3d 822 at 822-823 p. 987
- Sealey v. Westend Gardens Housing Development Fund Co. 97 AD3d 653 at 654-655 p. 987
- Andrews v. New York City Housing Authority 90 AD3d 962 at 963 p. 987
- Levitt v. County of Suffolk 166 AD2d 421 at 422-423 p. 987
- Specialized Realty Services, LLC v. Town of Tuxedo 80 AD3d 690 p. 987
- Hughes v. Welsbach Electric Co. 101 AD3d 684 p. 988
- Kaya v. B & G Holding Co., LLC 101 AD3d 685 p. 988
- Arthur J. Gallagher & Co. v. Marchese 96 AD3d 791 at 792 p. 988
- Abrams v. Berelson 94 AD3d 782 at 784 p. 988
- Tornheim v. Blue & White Food Products Corp. 88 AD3d 869 p. 988
- Welz v. Welz 83 AD3d 696 at 697 p. 988
- Sicurelli v. Sicurelli 73 AD3d 735 p. 988
- Badgett v. Badgett 2 AD3d 379 p. 988