Motion to Vacate Sample

3421 Words Sep 16th, 2013 14 Pages
CPLR 5015(a) is a frequently invoked provision in New York practice. It lists the principal grounds on which a judgment or order may be vacated. It provides (verbatim) that “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: * 1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or * 2. newly-discovered evidence which, if introduced at the trial, would probably have produced a …show more content…
This is not an easy paragraph to satisfy. The showing that must be made before the motion will be granted under this provision is that the evidence is not only “newly-discovered”, but that it is evidence of such quality that it will “probably”, not merely “possibly”, change the result in the case. And the movant should also show why, with reasonable diligence, the evidence could not have been discovered in time for the trial, or at least in time to move for a new trial under CPLR 4404. (The time for the post-trial motion is tight. See CPLR 4405 and the Commentary on it.)
The newly discovered evidence can't merely be “cumulative”, nor “such as would merely impeach the credibility of an adverse witness”. Cizler v. Cizler, 19 A.D.2d 819, 243 N.Y.S.2d 614 (1st Dept., 1963).

In Cizler, a wrongful death action had been dismissed, before submission to the jury, for failure of proof. At the time of the trial the plaintiff, despite a diligent search for eyewitnesses to the automobile accident, could find none. The plaintiff afterwards found such an eyewitness and moved for a new trial. The court found the requirements of what is now paragraph 2 satisfied and granted the plaintiff's motion, but with the condition that the plaintiff pay the defendant's costs and disbursements to date (including appeal costs).
While “generally newly discovered evidence going only to credibility” is not a basis for setting aside a judgment, it may become so when a

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