Bongiasca v. Bongiasca , 735 N.Y.S.2d 42 ( 2001 )

Order, Supreme Court, New York County (Marylin Diamond, J.), entered September 14, 1999, which, inter alia, denied defendant’s motion pursuant to Judiciary Law § 756 for an order finding plaintiff in contempt, granted plaintiff’s cross motion for confirmation of the referee’s report and denied defendant’s cross motion for CPLR 5015 (a) relief, unanimously affirmed, without costs. Judgment, same court and Justice, entered August 2, 2000, awarding plaintiff the total sum of $1,357,230.10, unanimously modified, on the law, to vacate the award of interest on attorney fees, and to award plaintiff a total of $1,347,361.49, and otherwise affirmed, without costs.

Defendant was properly denied relief under CPLR 5015 (a) (2) or (3). Defendant did not show that his new evidence could not have been found earlier with due diligence (cf., Prote Contr. Co. v Board of Educ., 230 AD2d 32, 40), or that it refuted the essential findings underlying the judgment and would probably have resulted in a different outcome (see, Weinstock v Handler, 251 AD2d 184, lv dismissed 92 NY2d 946). Further, he did not sufficiently demonstrate that plaintiff’s testimonial misstatements were willful (cf., Nachman v Nachman, 274 AD2d 313, 315-316). There is no basis for holding plaintiff in civil or criminal contempt.

It is undisputed that there should not have been an award of pre-judgment interest on the award of attorney fees to plaintiff. Accordingly, plaintiff is entitled to the award of $1,071,400 in arrears, plus the attorney fee award of $53,521.24, both of which have been upheld by this Court (269 AD2d 187, lv dismissed 95 NY2d 791), with interest on the arrears only, in the amount of $222,440.25. Concur — Nardelli, J. P., Mazzarelli, Andrias, Ellerin and Rubin, JJ.