Casey v. Slattery

• Decision Date: 16 March 1995
• Citation: 213 A.D.2d 890,623 N.Y.S.2d 942
• Parties: Christopher CASEY, Respondent, v. John SLATTERY et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 942

623 N.Y.S.2d 942

213 A.D.2d 890

Christopher CASEY, Respondent, v. John SLATTERY et al., Appellants.

Supreme Court, Appellate Division Third Department.

March 16, 1995.

Sweeney & Calabrese (Barry M. Sweeney and Dario Di Lello, of counsel), White Plains, for John Slattery and another, appellants.

James McCarl, Circleville, for Thomas J. Boyle and another, appellants.

Eugene J. Adams P.C. (Thomas N. O'Hara, of counsel), New City, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and PETERS, JJ.

WHITE, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Bergerman, J.), entered April 2, 1993 in Rockland County, which granted plaintiff's motion to set aside a verdict on the issue of damages, and granted a new trial.

At the conclusion of the trial of this automobile negligence action, the jury returned a verdict in favor of plaintiff awarding him $63,000 for past pain and suffering and $12,000 for future pain and suffering over the next 50 years. It then proceeded to reduce its award by $5,000 due to plaintiff's failure to wear a seatbelt. Plaintiff's counsel reacted by orally moving to set the verdict aside, contending that the award of damages was insufficient. ¹ Supreme Court denied the motion.

Four months after the rendition of the verdict, plaintiff brought on a written motion before Supreme Court to set the verdict aside. In their opposing papers, defendants pointed out that the motion was untimely under CPLR 4405. Plaintiff then recast the motion as one to reargue his previously denied oral motion. Supreme Court rejected defendants' argument of untimeliness and found the verdict, insofar as it related to the award of damages, to be against the weight of the evidence. Accordingly, the court set the verdict aside and directed a new trial on the issue of damages. Defendants appeal.

In addition to making an oral motion immediately after the rendition of the verdict, a litigant, within 15 days of the date of the verdict, may make a written motion for such relief (CPLR 4405, 4406). A litigant's failure to timely move is not necessarily fatal if the litigant can establish "good cause" for the delay (CPLR 2004; see, Pioli v. Morgan Guar. Trust Co. of N.Y., 199 A.D.2d 144, 148, 605 N.Y.S.2d 254).

In this instance, Supreme Court abused its discretion in overlooking plaintiff's delay since he failed to offer any explanation for his substantial delay (see, Tesciuba v. Cataldo, 189 A.D.2d 655, 592 N.Y.S.2d 326, lv. dismissed 82 N.Y.2d 846, 606 N.Y.S.2d 597, 627 N.E.2d 519). Moreover, it should not have accepted plaintiff's characterization of his motion as one for reargument since it was an obvious artifice designed to evade the time limitation of CPLR 4405 (see, De Blasio v. Volkswagen of Am., 124 Misc.2d 726, 477 N.Y.S.2d 275). Additionally, such maneuver was not in accord with the procedure set forth in CPLR 4406. Accordingly, we reverse and reinstate the verdict.

Were we to reach the merits, our determination would be the same since, in our opinion, Supreme Court abused its discretion in setting the verdict aside. The principal argument plaintiff advanced in support of his position that the jury's damage award was insufficient is that it does not adequately reflect the serious head injury he sustained, which has left him with ongoing mental and psychological problems. While plaintiff's expert testified that plaintiff sustained a skull fracture, two CT scan reports in evidence describe the fracture as "not...