In re Granata , 56 A.D.2d 932 ( 1977 )

In a proceeding pursuant to article 77 of the Mental Hygiene Law to appoint a conservator, petitioner appeals from an order of the Supreme Court, Nassau County, dated November 17, 1976, which denied her application to (1) vacate a prior order of the same court which, after a hearing, dismissed the proceeding and (2) continue the hearing. Order modified, on the law, by adding thereto a provision directing the cancellation of the lis pendens filed against respondent’s property. As so modified, order affirmed, with $50 costs and disbursements to respondent. The argument that Special Term overlooked or misconstrued the testimony given at the hearing is barred by the doctrine of res judicata, since no appeal was taken from the order entered thereon (see Netchi v Bernard, 8 Misc 2d 1035). As to the allegations of newly discovered evidence (see CPLR 5015), petitioner has not shown, by clear and convincing proof, that the proposed conservatee’s ability to care for herself and her property has been substantially impaired since the first application. Upon this record, it cannot be said that the court abused its discretion in denying the application to vacate the prior order. Martuscello, Acting P. J., Cohalan, Rabin and Mollen, JJ., concur.