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Current Developments in the Commercial Divisions of the
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Posted: June 22, 2016

Vacature Based on New Evidence Denied For Lack of Explanation Why Evidence Not Discovered Earlier

On June 16, 2016, the First Department issued a decision in Molina v. Chladek, 2016 NY Slip Op. 04801, denying a motion to vacate a judgment based on newly-discovered evidence, explaining:

Five years [after judgment was entered], defendant moved to vacate on the grounds of newly discovered evidence showing fraud and misrepresentation (CPLR 5015[a][2] and [3]), based on a purportedly “newly-discovered” commission agreement, which provided for a 10% commission. Aside from the fact that the newly-presented agreement appears on its face to reference a particular transaction, defendant’s submission does not warrant relief under CPLR 5015(a)(2) because he failed to explain why the letter agreement, which was addressed to him, could not have been discovered previously by the exercise of due diligence. Defendant has not offered any reasonable explanation for why he was not able to retrieve the proffered letter agreement until nearly five years after entry of the default judgment, or why he did not mention its existence in his initial motion to vacate. The evidence presented was also wholly insufficient to demonstrate fraud that would justify relief under CPLR 5015(a)(3). Moreover, defendant failed to move for such relief within a reasonable time.

(Internal quotations and citations omitted) (emphasis added).

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