By: Shulman, P.J., Edmead, JJ. 19-259. COD, LLC, pet-land-app, v. Susan Smith Adelglass and Howard Adelglass, res-ten-res — Order (Jean T. Schneider, J.), dated September 14, 2018, affirmed, without costs. Landlord’s CPLR 4404(b) motion sought to increase its recovery for rent arrears by an additional $5,061 based upon purportedly newly discovered evidence, namely a stipulation of settlement from a prior summary proceeding between the parties dated March 16, 2017. Evidence only qualifies as “newly-discovered” if it was in existence at the time of the trial, but was inaccessible (see Gagliardi v. State of New York, 148 AD3d 868, 870 [2017]), and could not have been produced prior to the conclusion of trial with the exercise of due diligence (see Trimarco v. Data Treasury Corp., 146 AD3d 1008, 1010 [2017]). This stipulation does not qualify as newly discovered evidence because it was obviously known and accessible to landlord but not introduced at trial (see Da Silva v. Savo, 97 AD3d 525, 526 [2012]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
By: Shulman, P.J., Edmead, JJ. 19-348/349. Maurice Oparaji, plf-app, v. Municipal Credit Union d/b/a MCU, def-res — Order and judgment (Sabrina B. Kraus, J.), entered June 6, 2018, modified to reinstate the breach of contract cause of action and to remand for a new trial on said cause of action; as modified, order and judgment affirmed, without costs. Appeal from order (same court and Judge), entered October 11, 2017, dismissed, without costs, as subsumed in the appeal from the ensuing order and judgment, and as academic. The breach of contract cause of action asserted by plaintiff, a client of defendant Municipal Credit Union (MCU), should not have been dismissed at the close of plaintiff’s case. Accepted as true and accorded the benefit of every favorable inference (see Szczerbiak v. Pilat, 90 NY2d 553, 556 [1997]), plaintiff’s as yet unrebutted testimony and documentary evidence established that MCU imposed some sixty-nine charges for overdraft fees on his checking account that were not authorized by the terms of the agreement between the parties. This evidence was sufficient to demonstrate at this juncture the existence of a contract, defendant’s breach thereof and resulting damages (see Harris v. Seward Park Hous. Corp., 79 AD3d 425, 426 [2010]). However, even affording plaintiff every favorable inference that reasonably could be drawn from the evidence adduced at trial, we agree that plaintiff merely alleged a private contract dispute unique to the parties that would not fall within the ambit of General Business Law §349 (see Gomez-Jimenez v. New York Law Sch., 103 AD3d 13, 16 [2012], lv denied 20 NY3d 1093 [2013]). Plaintiff’s conversion and breach of fiduciary duty claims based upon the same allegations that underlie his breach of contract claim were properly dismissed as duplicative (see Rossetti v. Ambulatory Surgery Ctr. of Brooklyn, LLC, 125 AD3d 548, 549 [2015]; Brooks v. Key Trust Co. Natl. Assn, 26 AD3d 628, 630 [2006], lv dismissed 6 NY3d 891 [2006]). The action having proceeded to trial, the appeal from the order denying plaintiff’s motion for summary judgment is dismissed as academic (see Ponticelli v. San Remo Civic Assn., 57 AD2d 612 [1977]). Were we to examine the merits, we would affirm. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
