## Facts

- S.A.B. Enterprises, Inc. acquired real property in the Village of Athens, Greene County, New York in 1967 and failed to pay 1972 taxes.
- The County of Greene obtained the property through a 1974 tax foreclosure sale and later conveyed it to Stewart’s Ice Cream Co., Inc.
- In earlier litigation, S.A.B. challenged the foreclosure and conveyances, alleging defective statutory notice and related irregularities.
- A 1990 jury verdict upheld the tax foreclosure procedures, and an appellate court affirmed in 1992.
- In 1996, S.A.B. moved to vacate the 1990 judgment under CPLR 5015(a)(2) and (3), asserting that notices in public records for other owners used different typeface, implying S.A.B.’s notice was fabricated after the sale.
- The County asserted that any typeface differences resulted from different clerical staff using different typewriters.
- The motion relied on records that were publicly available and accessible to S.A.B. for years before the 1996 filing.

## Issues

1. Whether the judgment should be vacated under CPLR 5015(a)(2) based on alleged newly discovered evidence (typeface discrepancies in comparable tax notices) that purportedly would have changed the trial outcome and could not have been found earlier with due diligence.
2. Whether the judgment should be vacated under CPLR 5015(a)(3) for fraud, misrepresentation, or misconduct based on the claim that the notice to S.A.B. was fabricated after the foreclosure.

## Decision

- The appellate court affirmed the order denying vacatur.
- Relief under CPLR 5015(a)(2) was denied because the evidence was obtainable earlier with due diligence and was not shown likely to change the result.
- Relief under CPLR 5015(a)(3) was denied because the fraud claim was not substantiated and rested on speculation contradicted by a nonfraudulent explanation.

## Legal Principles

- CPLR 5015(a)(2) requires proof that the evidence would probably have produced a different result and could not have been discovered earlier despite due diligence.
- Evidence available from public records, accessible to the movant well before the motion, generally fails the “newly discovered” and due diligence requirements.
- CPLR 5015(a)(3) requires a concrete showing of fraud, misrepresentation, or misconduct; inferential allegations unsupported by specific proof are insufficient.
- A substantial, unexplained delay in seeking relief from judgment weighs against vacatur, particularly where the basis for the motion was discoverable earlier.

## Conclusion

The court upheld the finality of the prior judgment, finding that S.A.B.’s typeface-based theory neither qualified as newly discovered evidence nor established actionable fraud, especially given the earlier availability of the records and an adequate benign explanation for the discrepancy.


S.A.B. Enters., Inc. v. Stewart's Ice Cream Co., 242 A.D.2d 845, 662 N.Y.S.2d 614 (N.Y. App. Div. 3d Dep't 1997)