Contractors Casualty & Surety Co. v. 535 Broadhollow Realty, L. L. C.

In an action to recover damages pursuant to an agreement to indemnify, Chestnut Hill Real Estate Corp., Ted Doukas, and Mary Hauptman appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Alpert, J.), dated September 27, 1999, as denied their motion pursuant to CPLR 5015 (a) (2) to vacate a judgment of the same court, dated July 21, 1999, which was in favor of the plaintiff and against them in the principal sum of $51,570.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in denying the appellants’ motion to vacate the judgment pursuant to CPLR 5015 (a) (2), as the appellants failed to show that the alleged newly-discovered evidence could not have been discovered with due diligence before entry of the judgment (see, Orix Credit Alliance v Grace Indus., 274 AD2d 424; Dan’s Supreme Supermarkets v Redmont Realty Co., 261 AD2d 353; Corpuel v Galasso, 240 AD2d 531).

We decline to consider the plaintiffs request for an award of an attorney’s fee in connection with this appeal. O’Brien, J. P., Sullivan, Krausman, Goldstein and Schmidt, JJ., concur.