BONGIASCA v. BONGIASCA

Defendant was properly denied relief under CPLR 5015(a)(2) or (3). Defendant did not show that his new evidence could not have been found earlier with due diligence (cf., Prote Contr. Co. v. Bd. of Educ., 230 A.D.2d 32, 40), or that it refuted the essential findings underlying the judgment and would probably have resulted in a different outcome (see, Weinstock v. Handler, 251 A.D.2d 184, appeal dismissed 92 N.Y.2d 946). Further, he did not sufficiently demonstrate that plaintiff's testimonial misstatements were willful (cf., Nachman v. Nachman, 274 A.D.2d 313, 315-316). There is no basis for holding plaintiff in civil or criminal contempt.

It is undisputed that there should not have been an award of pre-judgment interest on the award of attorney fees to plaintiff. Accordingly, plaintiff is entitled to the award of $1,071,400 in arrears, plus the attorney fee award of $53,521.24, both of which have been upheld by this court ( 269 A.D.2d 187, appeal dismissed 95 N.Y.2d 791), with interest on the arrears only, in the amount of $222,440.25.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.