Lougaris v. Spilio

—Crew III, J. [1003] Following a nonjury trial in this RPAPL article 15 action involving a boundary dispute between the parties, Supreme Court granted defendant’s motion to dismiss plaintiffs’ complaint, and a judgment was entered in favor of defendant in April 1993. On appeal, this Court affirmed Supreme Court’s judgment (204 AD2d 775). Subsequently, in September 1994, plaintiffs brought a motion pursuant to RPAPL 1531 (2) seeking a new trial. Inasmuch as this statutory provision requires that such motion be brought within one year after entry of the judgment, plaintiffs also sought an extension of time within which to make this motion pursuant to CPLR 2004. Supreme Court concluded that plaintiffs’ motion was untimely and, in any event, should be denied on the merits. This appeal by plaintiffs followed. We affirm. While the parties dispute whether CPLR 2004 may be applied to extend the period within which to bring the motion at issue here, we need not address this issue in light of our conclusion that Supreme Court did not abuse "its discretion in the interest of justice” (RPAPL 1531 [2]) by refusing to grant plaintiffs a new trial. The record reveals that plaintiffs’ motion was premised upon the submission of a new survey of the disputed property that plainly could have been obtained prior to the conclusion of this litigation. Additionally, plaintiffs had a full and fair opportunity to litigate this matter, despite their dissatisfaction with the final result, and we find no basis upon this record to disturb Supreme Court’s conclusion that "there is no reasonable likelihood that the receipt of this survey would yield a different result at [a new] trial”. Plaintiffs’ remaining contentions have been examined and found to be lacking in merit. Mikoll, J. P., Mercure, White and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, with costs.