Balogh v. H. R. B. Caterers, Inc.

• Decision Date: 12 July 1982
• Docket Number: No. 1,No. 2,1,2
• Citation: 88 A.D.2d 136,452 N.Y.S.2d 220
• Parties: Eleanor BALOGH, et al., Appellants, v. H. R. B. CATERERS, INC., et al., defendants; Lamplighters Lounge, Inc., Respondent. (Action) Eleanor BALOGH, et al., Appellants, v. ROCKLAND CONSTRUCTION HALL, INC., Respondent. (Action)
• Court: New York Supreme Court — Appellate Division

Page 220

452 N.Y.S.2d 220

88 A.D.2d 136

Eleanor BALOGH, et al., Appellants, v. H. R. B. CATERERS, INC., et al., defendants;

Lamplighters Lounge, Inc., Respondent. (Action No. 1)

Eleanor BALOGH, et al., Appellants, v. ROCKLAND CONSTRUCTION HALL, INC., Respondent. (Action No. 2)

Supreme Court, Appellate Division Second Department.

July 12, 1982.

Hurley, Fox, Selig & Robustelli, Stony Point (Ralph Joseph, New City, of counsel), for appellants.

McCaffrey & Condon, White Plains (Francis J. McCaffrey, White Plains, of counsel), for respondents.

Before MOLLEN, P. J., and TITONE, THOMPSON and NIEHOFF, JJ.

TITONE, Justice.

In two related actions consolidated for trial, plaintiffs seek to recover, inter alia, damages for personal injuries suffered by Eleanor Balogh when she slipped and fell on a dance floor in a restaurant where she was attending a dinner dance. At the trial and during the presentation of plaintiffs' case, the Trial Judge denied their attorney's motion for a short continuance and then dismissed both actions. Plaintiffs' appeal is from a subsequent order of the same Judge denying their application to set aside the dismissal of the cases and to restore them to the calendar for trial. Although the Trial Judge considered their application as a posttrial motion pursuant to CPLR 4404 for a new trial, the underlying issue on appeal is whether, under the circumstances, the Trial Judge was justified in denying the request of plaintiffs' counsel for a continuance in order to enable him to produce a person on behalf of the plaintiffs who would be both a "notice" witness and an eyewitness to the occurrence.

In the first-enumerated action it is alleged in the complaint that on May 9, 1975, the plaintiff wife, Eleanor Balogh, slipped and fell while walking along the edge of a dance floor in the premises operated and controlled by the defendants therein. In the second action, against defendant Rockland Construction Hall, Inc., in addition to reciting similar allegations as to the accident, plaintiffs also allege that Rockland Construction was the owner of the building where the incident occurred.

The thrust of the plaintiff wife's claim, as reflected in her bill of particulars, is that her fall resulted from the negligence, inter alia, of defendants' agents or employees in allowing water or other liquid located at a nearby serving station to be spilled onto the dance floor, and in failing to have the wet area cleaned up after being given notice of the condition by another guest (Grace Campbell) prior to the accident.

Pursuant to a summer trial program initiated by the Administrative Judge, the actions were set down for trial for the early part of August, 1980. The trial was rescheduled for the twenty-first of that month, and on that date it was adjourned to Tuesday, August 26, because plaintiffs' counsel was actively engaged in another trial.

The parties selected a jury on the twenty-sixth, and proceeded to trial the following morning. Before the trial was recessed on the twenty-seventh, testimony was elicited from both plaintiffs and one of the eyewitnesses to the accident.

On the morning of Thursday, August 28, plaintiffs' counsel advised the Trial Judge that he had no further witnesses available to testify that day and the following day. He represented to the court that Mrs. Grace Campbell, who not only was an eyewitness to the accident, but also saw the water condition on the floor prior thereto and asked waiters and waitresses to do something about it before someone was hurt, would not return to Rockland County from a vacation at the New Jersey shore until Friday evening, August 29. Fox then requested a trial continuance until the morning of Tuesday, September 2, 1980 (the day after Labor Day). In his affirmation in support of the within motion to restore the case to the trial calendar, Fox represented to the court that on the evening of August 27, 1980, at the end of the first day of the trial, he learned that Mrs. Campbell had left on Monday evening, August 25, 1980, for a short vacation with her family at the New Jersey shore. Fox stated that without testimony from Mrs. Campbell he knew of no way he could make out a prima facie case.

After a short colloquy amongst the Trial Judge and the attorneys for the respective parties, the Trial Judge made the following remark:

"I am going to put a call in to the Administrative Judge, because he called this calendar. He controls this calendar. I will advise him what the equities are. As you know, we have lost our autonomy. We will have a recess and I will discuss it with His Honor and so advise you." (Emphasis supplied.)

When court was reconvened following the recess, the Trial Judge read a statement given by Mrs. Campbell on behalf of the plaintiffs. In it she stated, inter alia, that upon seeing the water spill on the floor she went to the kitchen and asked waiters and waitresses to clean up the water because one of the dancers might slip and fall. Although a number of those employees did use napkins to clean up some of the water, an accumulation of water still remained on the floor when Mrs. Balogh's feet went out from under her while she was dancing.

After he finished reading Mrs. Campbell's statement, the Trial Judge rendered the following decision on plaintiffs' motion for a continuance:

"I have brought this matter to the attention of the Administrative Judge. I have reviewed the arguments that were presented to me and predicated on a review of the entire situation, the Court at this time denies the application for a continuance, regretfully.

"So the case, unfortunately, is dismissed. "

(Emphasis supplied.)

No written order was entered by either party on the decision of the Trial Judge on August 28, 1980. However, approximately five and one-half months later (February 12, 1981), plaintiffs brought the within application to set aside the dismissal and to restore the action to the trial calendar. The Judge who presided over the aborted trial, and to whom the application was referred, considered it to be a posttrial motion pursuant to CPLR 4404 for a new trial, and then denied it as being untimely pursuant to CPLR 4405. We disagree not only with his treatment of the subject application procedurally, but with his final determination thereof, and with his earlier denial of the application for a continuance and his dismissal of plaintiffs' case.

CPLR 4404, entitled "Post-trial motion for judgment and new trial", provides as follows "(a) Motion after trial where jury required. After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.

"(b) Motion after trial where jury not required. After a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue." (Emphasis supplied.)

As the above-quoted language clearly indicates, for a motion to be brought under CPLR 4404, there must be a presentation by the parties of evidence to a jury or to the court sitting without a jury, and either a verdict or decision rendered and perhaps a judgment entered thereon, or a hung jury. CPLR 4404 was designed to unify the motion for a new trial with that for a judgment notwithstanding the verdict or decision (2 N.Y.Adv.Comm.Rep. 310 [1958]).

In this instance the trial never proceeded to a verdict by the jury, nor was the jury hopelessly deadlocked. Instead, the trial was aborted during plaintiffs' case by the Trial Judge's denial of the motion for a continuance and sua sponte dismissal of the consolidated actions. Thus, the Trial Judge erred in treating plaintiffs' application herein as a "post-trial motion for judgment and new trial" under CPLR 4404.

Since CPLR 4404 was erroneously applied in this instance, it follows that CPLR 4405, entitled "Time and judge before whom post-trial motion made", upon which the Trial Judge relied in denying the application as untimely, was likewise inapplicable. Although the 15-day period set forth in CPLR 4405 is applicable to a posttrial motion under CPLR 4404, such statutory limitation does not apply to motions made under other provisions of the same article (CPLR art. 44) which deal solely with motions made during trial, i.e., CPLR 4401 ("Motion for judgment during trial"), and CPLR 4402 ("Motion for continuance or new trial during trial"). (See Siegel, Supplementary Practice Commentary, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 4405, 1964 to 1981 Supp. Pamphlet, p. 170.)

We are also of the opinion that the trial court erred initially in denying plaintiffs' motion on the Thursday before Labor Day for a trial continuance over the Labor Day weekend. The record indicates that plaintiffs' trial counsel made diligent efforts to locate Mrs. Campbell during the week of the trial, but did not learn until the Wednesday evening before Labor Day, and after the trial had started, that she was out of State on vacation and would not be available to testify until the day after Labor Day. It is undisputed that her testimony was crucial not only as an eyewitness to the accident but also as one who gave actual notice of the alleged slippery condition of the dance floor to waiters and waitresses shortly before the occurrence (cf. Bruce v. Hospital...