Opinion
December 8, 1994
Appeal from the Supreme Court, New York County (Shirley Fingerhood, J.).
Defendants' motion was made after this Court reversed a previous order of the IAS Court in this case and granted summary judgment to plaintiff [ 192 A.D.2d 421]. The IAS Court, upon defendants' subsequent motion for renewal, correctly concluded that it was without authority to modify or vacate an order of the Appellate Division (see, Brown v Brown, 169 A.D.2d 487; Maracina v Schirrmeister, 152 A.D.2d 502).
Moreover, even if defendants' "newly discovered" evidence was to be considered, their motion would still be denied. Defendants have failed to proffer any new evidence supporting their contention that Leeds was cloaked with the apparent authority, or possessed the actual authority, to accept payments on behalf of Fleet (Hallock v State of New York, 64 N.Y.2d 224, 231; Greene v Hellman, 51 N.Y.2d 197, 204).
Further, defendants' assertions of apparent authority are meritless as it appears that they were unaware of the checks upon which they now rely at the time the payments were made to Leeds. In any event, the purported newly discovered evidence is insufficient to establish that Leeds had actual or legal authority to accept payment on behalf of Fleet (see, e.g., McGarry v Miller, 158 A.D.2d 327; Ford v Unity Hosp., 32 N.Y.2d 464). We have reviewed defendants' remaining arguments and find them to be without merit.
Concur — Rosenberger, J.P., Wallach, Asch and Tom, JJ.