Opinion
April 10, 1978
In an action arising out of the alleged misappropriation of trade secrets, defendants appeal from (1) a judgment of the Supreme Court, Kings County, dated October 13, 1977, which, after a nonjury trial, inter alia, enjoined them from manufacturing ricotta cheese by use of plaintiff's "new mechanized process", (2) an order of the same court, entered December 12, 1977, which denied their posttrial motion pursuant to CPLR 4404 (subd [b]) to set aside the decision of the court and the judgment based thereon and (3) a further order of the same court, dated December 16, 1977, which denied their motion to set aside the verdict on the grounds of newly discovered evidence. Order dated December 16, 1977 reversed, without costs or disbursements, and action remanded to Trial Term for a hearing on the motion, at which the court shall consider the impact of the recanting affidavit of Mr. John A. Russo and any other like evidence which the parties may deem it advisable to present. The appeals from the judgment and the order entered on December 12, 1977 are held in abeyance pending the outcome of said hearing and the receipt by this court of the order to be entered thereon. In our opinion the Trial Judge committed error in deciding the CPLR 5015 motion without holding a hearing. We feel that the seriousness of the allegations in the recanting affidavit, to wit, that plaintiff had committed a fraud on the court through the use of perjured testimony, requires, in the interests of justice, a full hearing and that the motion should not have been decided on affidavits. Titone, J.P., Rabin, Gulotta and Margett, JJ., concur.