
    Corey L. Kerner, Respondent, v Robert Kerner, Appellant.
    (Appeal No. 5.)
    [691 NYS2d 847]
   —Order unanimously affirmed without costs. Memorandum: We exercise our discretion to treat the appeal, taken from the decision, as taken from the order (see, CPLR 5520 [c]; Progressive Ins. Co. v Rudd Spray Serv., 236 AD2d 874). Supreme Court properly denied defendant’s motion for postjudgment relief. Insofar as the motion may be viewed as one pursuant to CPLR 4404 (b), we conclude that it was untimely (see, CPLR 4405; Casey v Slattery, 213 AD2d 890, 891; Bertan v Richmond Mem. Hosp. & Health Ctr., 131 AD2d 799, 800-801). Insofar as the motion may be viewed as one to vacate the judgment pursuant to CPLR 5015 (a) (2), we conclude that it was improperly predicated upon evidence available at trial and upon posttrial events. “Only evidence which was in existence but undiscoverable with due diligence at the time of judgment may be characterized as newly discovered evidence” (Matter of Commercial Structures v City of Syracuse, 97 AD2d 965, 966). (Appeal from Order of Supreme Court, Erie County, Flaherty, J. — Vacate Judgment.) Present — Lawton, J. P., Hayes, Wisner, Hurlbutt and Scudder, JJ.  