Matter of Apostolidis, 2023 NY Slip Op 04587 [219 AD3d 1331]

September 13, 2023

Appellate Division, Second Department

[*1]

In the Matter of Konstantinos Apostolidis, Deceased. Coalition of Landlords, Homeowners and Merchants, Inc., et al., Appellants. Judith N. Berger, Nonparty Appellant. Estate of Konstantinos Apostolidis, Respondent.

Judith N. Berger, Lindenhurst, NY, nonparty appellant pro se and for appellants.

In a probate proceeding in which the Coalition of Landlords, Homeowners & Merchants, Inc., and Paul Palmieri petitioned pursuant to SCPA 1809 to determine the validity of a claim against the estate of Konstantinos Apostolidis, the petitioners, Coalition of Landlords, Homeowners & Merchants, Inc., and Paul Palmieri, and nonparty Judith N. Berger appeal from an order of the Surrogate’s Court, Suffolk County (Theresa Whelan, S.), entered August 1, 2019. The order denied the petitioners’ motion pursuant to CPLR 5015 (a) (2) and (3) to vacate an order of the same court (John M. Czygier, Jr., S.) dated December 27, 2018, made after a nonjury trial, rejecting a claim made by the Coalition of Landlords, Homeowners and Merchants, Inc., against the estate of Konstantinos Apostolidis in the sum of $81,500, granted that branch of the cross-motion of the estate of Konstantinos Apostolidis which was to impose a financial sanction upon nonparty Judith N. Berger, and imposed a sanction upon Judith N. Berger in the sum of $1,000.

Ordered that the appeal of Paul Palmieri is dismissed, as he is not aggrieved by the order appealed from ( see CPLR 5511); and it is further, Ordered that the order entered August 1, 2019, is modified, on the law, by deleting the provisions thereof granting that branch of the cross-motion of the estate of Konstantinos Apostolidis which was to impose a financial sanction upon nonparty Judith N. Berger, and imposing a sanction upon Judith N. Berger in the sum of $1,000, and substituting therefor a provision denying that branch of the cross-motion; as so modified, the order is affirmed, without costs or disbursements, and a subsequent order of the same court (Theresa Whelan, J.), dated October 28, 2021, is vacated.

In this probate proceeding, the Coalition of Landlords, Homeowners and Merchants, Inc. (hereinafter the Coalition), and Paul Palmieri asserted a claim against the estate of Konstantinos Apostolidis (hereinafter the Estate) based on a handwritten promissory note dated December 5, 2009, purportedly obligating the decedent to pay the Coalition $81,500. In an order dated December 20, 2016, the Surrogate’s Court, inter alia, directed dismissal of the petition insofar as asserted by Palmieri pursuant to CPLR 3126 as a sanction for frustrating the disclosure process. The Coalition and Palmieri appealed, and this Court, among other things, affirmed so much of the December 20, 2016, order as directed dismissal of the petition insofar as asserted by Palmieri ( see Matter of [*2] Apostolidis , 193 AD3d 1039 [2021]).

Following a nonjury trial, in an order dated December 27, 2018, the Surrogate’s Court, inter alia, determined that the Coalition failed to meet its burden of establishing the existence of the note executed by the decedent containing an unconditional obligation to repay. The Coalition subsequently moved pursuant to CPLR 5015 (a) (2) and (3) to vacate the order upon the ground of newly discovered evidence, and for a new trial. The Estate cross-moved, inter alia, for an order imposing sanctions upon the attorney for the Coalition, Judith N. Berger. The court denied the Coalition’s motion, granted that branch of the Estate’s cross-motion which was to impose a financial sanction upon Berger, and imposed a sanction upon her in the sum of $1,000. The Coalition and Berger appeal.

The Surrogate’s Court providently exercised its discretion in denying that branch of the Coalition’s motion which was pursuant to CPLR 5015 (a) (2) to vacate the December 27, 2018, order upon the ground of newly discovered evidence. “Newly discovered evidence is evidence which was in existence but undiscoverable with due diligence at the time of the original order or judgment” ( Chase Bank USA, N.A. v Laroche , 208 AD3d 845 , 846 [2022] [internal quotation marks omitted]; see Wall St. Mtge. Bankers, Ltd. v Rodgers , 148 AD3d 1088 , 1089 [2017]). “In order to succeed on a motion pursuant to CPLR 5015 (a) (2) to vacate an order or judgment on the ground of newly discovered evidence, the movant must establish that the evidence could not have been discovered earlier through the exercise of due diligence and that the newly discovered evidence would probably have produced a different result” ( Chase Bank USA, N.A. v Laroche , 208 AD3d at 846 [internal quotation marks omitted]; see Borrie v County of Suffolk , 197 AD3d 1285 , 1286 [2021]; Wall St. Mtge. Bankers, Ltd. v Rodgers , 148 AD3d at 1089; Ferdico v Zweig , 82 AD3d 1151 , 1152 [2011]; Matter of State Farm Ins. Co. v Colangelo , 44 AD3d 868 , 868 [2007]). Here, the Coalition failed to establish, among other things, that the alleged newly discovered evidence “could not have been discovered earlier through the exercise of due diligence” ( Bank of Am., N.A. v Hirsch , 186 AD3d 1469 , 1470 [2020] [internal quotation marks omitted]; see Wall St. Mtge. Bankers, Ltd. v Rodgers , 148 AD3d at 1089; Yellow Book of N.Y., L.P. v Cataldo , 106 AD3d 1080 , 1080 [2013]; Ferdico v Zweig , 82 AD3d at 1152; Matter of State Farm Ins. Co. v Colangelo , 44 AD3d at 868).

The Coalition similarly failed to demonstrate any entitlement to relief pursuant to CPLR 5015 (a) (3). It failed to establish that the Estate engaged in any fraud, misrepresentation, or other misconduct warranting vacatur of the December 27, 2018 order ( see IMC Mtge. Co. v Vetere , 142 AD3d 954 , 955 [2016]; Yellow Book of N.Y., L.P. v Cataldo , 106 AD3d at 1080-1081).

Nevertheless, the Surrogate’s Court improvidently exercised its discretion in granting that branch of the Estate’s cross-motion which was to impose a sanction upon Berger. Contrary to the court’s determination, the Coalition’s motion was not frivolous within the meaning of 22 NYCRR 130-1.1 ( see Cooper v Oliver , 215 AD3d 796 [2023]; Matter of Salvatore L. Olivieri Irrevocable Trust dated 9/29/1994 , 208 AD3d 491 , 492 [2d Dept 2022]; Matter of Apostolidis , 193 AD3d at 1039). Connolly, J.P., Genovesi, Ford and Wan, JJ., concur..