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D'Anthony v. Lender

Appellate Division of the Supreme Court of New York, First Department
Jun 29, 1999
262 A.D.2d 247 (N.Y. App. Div. 1999)

Opinion

June 29, 1999.

Appeal from the Supreme Court, New York County (Ira Gammerman, J.).


The trial court's decision after trial held that defendant seller was under no obligation to convey because plaintiff's failure to supply all necessary documentation requested by the coop's Board resulted in her never obtaining the Board's consent, a condition of the sale. The so-called "true contract" upon which plaintiff now relies, which, inter alia, allegedly deleted the provision conditioning the sale upon plaintiff's obtaining the Board's consent thereto, does not qualify as newly-discovered evidence. First, the "true contract" was actually in plaintiff's attorney's possession for over a year prior to trial, and it appears that a deliberate decision, tactical in nature, was made not to use it ( see, Prote Contr. Co. v. Board of Educ., 230 A.D.2d 32, 39). Plaintiff's argument that defendant committed fraud on the court in not producing the "true contract" is without merit, where plaintiff never demanded that defendant produce it, and where neither party at trial disputed that the operative contract was that which was annexed to the complaint ( see, DiIorio v. Gibson Cushman, 166 A.D.2d 334, 335).

Concur — Ellerin, P. J., Mazzarelli, Rubin, Andrias and Buckley, JJ.


Summaries of

D'Anthony v. Lender

Appellate Division of the Supreme Court of New York, First Department
Jun 29, 1999
262 A.D.2d 247 (N.Y. App. Div. 1999)
Case details for

D'Anthony v. Lender

Case Details

Full title:MADELINE D'ANTHONY, Also Known as MADELINE DROEGE, Appellant, v. MARK S…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 29, 1999

Citations

262 A.D.2d 247 (N.Y. App. Div. 1999)
693 N.Y.S.2d 535