Motion to Vacate Sample Essay

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Pages: 14

CPLR 5015(a) is a frequently invoked provision in New York practice. It lists the principal grounds on which a judgment or order may be vacated. It provides (verbatim) that “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: * 1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or * 2. newly-discovered evidence which, if introduced at the trial, would probably have produced a …show more content…
American Trading and Production Corp., 66 A.D.2d 515, 414 N.Y.S.2d 11 (1979). Calling the dishonesty before it in Trapp a “gross perjury”, the court vacated the judgment.

The witness was supposedly an expert, retained by the plaintiff to testify about maintenance standards respecting ventilation in the holds of a ship. The witness's credentials were impressive as they flowed out of his testimony in mellifluous waves. He recited a litany of accomplishments during the qualifying stage of his questioning: he held several degrees from well-reputed institutions, rose through naval ranks to captain, commanded a dazzling array of vessels including the aircraft carrier Saratoga. He omitted his most relevant accomplishment, however: that he was a liar of great courage and imagination. The highest rank he ever achieved was chief warrant officer, he commanded no vessels except perhaps the sailboat he used in his bathtub, and if he held any degrees, the institutions he honored with his recitations were not prepared to confirm them. All of this was not discovered until after judgment, however, and during the trial the mass of lies, with the appearance of truth, apparently carried the day for the plaintiff. The court vacated the judgment. “[S]uch a gross fraud should not be permitted to stand”, whether the newly discovered evidence (the lying) goes merely to credibility or not.

N.Y. C.P.L.R. 5015 (McKinney)

Overlap of Newly Discovered Ground of