Piotrowski v. Patel , 733 N.Y.S.2d 670 ( 2001 )

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly denied plaintiffs’ motion to set aside the verdict and for a new trial (see, CPLR 4404 [a]) based upon the allegedly false testimony of defendant’s expert witness. Plaintiffs failed to establish that the evidence supporting their motion could not have been discovered earlier with due diligence or that the “evidence is ‘of such a nature, and is so positive and convincing, that it [would have], in all probability, produce [d] a different result’ ” (Bertan v Richmond Mem. Hosp. & Health Ctr., 131 AD2d 799, 801, quoting Collins v Central Trust Co., 226 App Div 486, 488). (Appeal from Judgment of Supreme Court, Erie County, Mintz, J. — Negligence.) Present — Pigott, Jr., P. J., Green, Wisner, Kehoe and Burns, JJ.