On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-290-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Lisa and Coburn.
At the conclusion of a bench trial, which involved an employee's repeated thefts from her employer, Judge James A. Farber entered a judgment for plaintiff and against defendant Sande Annuzzi in the amount of $719,297.14, and for plaintiff and against defendant Peter Annuzzi in the amount of $13,133.46. The judgment was entered on August 24, 2007. Defendants did not appeal, and Peter's judgment has been satisfied.
On August 22, 2008, Sande Annuzzi filed a motion for a new trial, asserting that she was entitled to a new trial on the ground of newly discovered evidence. After entertaining oral argument, Judge Farber denied the motion, and this appeal ensued.
After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nonetheless, we add the following comments.
At the trial, plaintiff submitted expert testimony from an accountant. Defendants offered no expert testimony. In preparation for Sande's defense to a criminal prosecution for the thefts involved herein, her counsel hired a forensic accountant. He submitted a report that is aimed at defeating the forensic evidence that was admitted during the civil trial.
Defendant based her new trial motion on the recent "discovery" of her present expert's forensic report, claiming that she was entitled to relief under Rule 4:50-1(b) and (c).
A motion of this sort "is addressed to the sound discretion of the trial court, which should be guided by equitable principles in determining whether relief should be granted or denied." Housing Auth. of Town of Morristown v. Little, 135 N.J. 274, 283 (1994). The trial judge's determination may not be disturbed unless "it represents a clear abuse of discretion." Id. at 283.
Quite obviously, defendant could have obtained the present report before trial. Thus, she fails to meet the requirement of Rule 4:50-1(b) that the evidence could not have been obtained before trial by due diligence. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009). Nor does she meet the requirements of Rule 4:50-1(c) since that rule also requires reasonable diligence. Pavlicka v. Pavlicka, 84 N.J. Super. 357, 366 (App. Div. 1964). Furthermore, there is no substance to her argument that plaintiff's forensic expert committed a fraud on the court in testifying as he did.
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