Cod, LLC v. Adelglass

COD, LLC, Petitioner-Landlord-Appellant, against Susan Smith Adelglass and Howard Adelglass, Respondents-Tenants-Respondents. Landlord appeals from an order of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), dated September 14, 2018, which denied its CPLR 4404(b) motion to set aside so much of a final judgment (same court and Judge), entered on or about July 31, 2018, which, in awarding possession to landlord in a nonpayment summary proceeding, limited its recovery for rent arrears to the principal sum of $6,691.9. Per Curiam. Order (Jean T. Schneider, J.), dated September 14, 2018, affirmed, without costs. Landlord's CPLR 4404(b) motion sought to increase its recovery for rent arrears by an additional $5,061 based upon purportedly newly discovered evidence, namely a stipulation of settlement from a prior summary proceeding between the parties dated March 16, 2017. Evidence only qualifies as "newly-discovered" if it was in existence at the time of the trial, but was inaccessible (see Gagliardi v State of New York, 148 AD3d 868, 870 [2017]), and could not have been produced prior to the conclusion of trial with the exercise of due diligence (see Trimarco v Data Treasury Corp., 146 AD3d 1008, 1010 [2017]). This stipulation does not qualify as newly discovered evidence because it was obviously known and accessible to landlord but not introduced at trial (see Da Silva v Savo, 97 AD3d 525, 526 [2012]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur Decision Date: December 26, 2019