Opinion
2021-50647
07-02-2021
Anthony W. Hall, Appellant, v. Shell Point Mortgage Servicing, Bank of NY-Mellon, Respondent.
Anthony W. Hall, appellant pro se. The Margolin & Weinreb Law Group, LLP (C. Lance Margolin of counsel), for respondent.
Unpublished Opinion
Anthony W. Hall, appellant pro se.
The Margolin & Weinreb Law Group, LLP (C. Lance Margolin of counsel), for respondent.
PRESENT: MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Cheryl J. Gonzales, J.), dated September 30, 2019. The order denied petitioner's motion, in effect pursuant to CPLR 4404 (b), to set aside a decision of that court dated September 6, 2019, made after a nonjury trial, dismissing the petition in an unlawful entry and detainer summary proceeding, and for a new trial.
ORDERED that the order is affirmed, without costs.
In this unlawful entry and detainer proceeding (RPAPL 713 [10]), petitioner seeks to be restored to possession of a house he claimed to own, from which he alleged he had been illegally evicted by respondent. In a decision dated September 6, 2019, following a nonjury trial, the Civil Court dismissed the petition, finding that petitioner presented no evidence that he was the owner of the house or that the house was his residence. Shortly thereafter, petitioner moved, in effect pursuant to CPLR 4404 (b), to set aside the September 6, 2019 decision and for a new trial on the ground that, due to the illegal lockout, petitioner had been unable to retrieve from the premises his personal documents that he needed at the nonjury trial and that he had now obtained a copy of the documents as proof to present to the Civil Court. By order dated September 30, 2019, the court denied petitioner's motion, finding that petitioner sought different relief than that requested in his motion papers.
We affirm, albeit on a different ground. Petitioner has not demonstrated, under the circumstances presented, that he should be given a second opportunity to prove that he was the owner of the house or that the house was his residence. He claims that the necessary documents were unavailable to him at the time because he did not have access to his house, but he has not demonstrated that there was no other way to prove his case. While "CPLR 4404 (b) permits the court, after a nonjury trial, to set aside its judgment and make new findings or order a new trial on an issue" (Carney v Carney, 236 A.D.2d 574, 575 [1997] [citation omitted]) based upon newly-discovered evidence (see Da Silva v Savo, 97 A.D.3d 525 [2012]), petitioner has not claimed that the documents he sought to rely on were newly discovered. Rather, he claims that they were in the house all along. Furthermore, in order for relief to be granted under CPLR 4404 (b) based on newly-discovered evidence, the movant must show that this evidence would probably have produced a different result had it been introduced at trial (see Matter of Shu Jiao Zhao v Wei Rong, 188 A.D.3d 1220 [2020]; Ambrose v Ambrose, 176 A.D.3d 1148 [2019]; Matter of Torregroza v Gomez, 85 A.D.3d 932 [2011]). As petitioner failed to include the documents in his motion papers and the record does not otherwise demonstrate that this evidence would probably have produced a different result, we find no basis to disturb the denial of petitioner's motion (see Matter of Shu Jiao Zhao v Wei Rong, 188 A.D.3d at 1221; Ambrose v Ambrose, 176 A.D.3d at 1151; cf. Matter of Torregroza v Gomez, 85 A.D.3d at 933).
We note that we do not consider those documents annexed to petitioner's brief which are dehors the record (see Chimarios v Duhl, 152 A.D.2d 508 [1989]) and, in any event, they do not constitute incontrovertible evidence to support petitioner's claim (cf. Kirp v Caleb's Path Realty Corp., 19 A.D.2d 744 [1963]; cf. also Crawford v Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291 [1974]).
Accordingly, the order is affirmed.
WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.