Finney v. Morton
| Decision Date | 04 April 2016 |
| Docket Number | Index No. 4654/13 |
| Parties | AMY FINNEY, as Administratix of the Estate of ROBERT C. FINNEY, JR., deceased Plaintiff, v. CHRISTOPHER A. MORTON, JR., Defendant. |
| Court | New York Supreme Court |
The Court read and considered the following documents upon this application:
| PAPERS NUMBERED |
| ORDER TO SHOW CAUSE |
| AFFIRMATION |
| EXHIBITS |
| 3-5 |
| AFFIRMATION IN OPPOSITION |
| EXHIBITS |
| 7-8 |
| REPLY AFFIRMATION |
| EXHIBIT |
| SEPTEMBER 2, 2015 LETTER |
| SEPTEMBER 8, 2015 LETTER |
| SEPTEMBER 11, 2015 LETTER |
| PLAINTIFF'S PROPOSED JUDGMENT |
| DEFENDANT'S OBJECTIONS |
| PROPOSED COUNTER JUDGMENT |
| PLAINTIFF'S OBJECTIONS |
This is a wrongful death action arising out of a fatal motorcycle accident. A non-jury trial on the issue of liability and damages was commenced on April 27, 2015, and concluded on April 29, 2015. By Decision and Order dated July 2, 2015, this Court rendered its nonjury verdict for purposes of CPLR §4213.
Defendant now moves for an order vacating and setting aside the nonjury verdict pursuant to CPLR §4404(b), on the grounds, inter alia, that the damages that the Court awarded to Plaintiff for past and future household services were excessive and were not supported by the evidence at trial. Defendant also moves for an Order setting this matter down for a present day value hearing pursuant to CPLR §5041. On September 2, 2015, this Court heard oral argument on Defendant's motion. Thereafter, this Court provided counsel with permission to make additional written submissions in support of their respective positions.
For the reasons stated herein, Defendant's motion to vacate and set aside the nonjury verdict is denied. Defendant's motion for a present day value hearing is granted to the limited extent that the Court has reviewed and considered the arguments advanced by counsel on September 2, 2015, and in the additional written submissions that counsel submitted with the Court's permission. Upon such review, the Court adopts the proposed Judgment that has been submitted by Plaintiff, and has signed that proposed Judgment simultaneously with the execution of this Decision and Order.
Plaintiff opposes Defendant's CPLR §4404(b) motion to vacate the nonjury verdict on the grounds, inter alia, that Defendant did not timely make this motion within the fifteen-day time period provided by CPLR §4405. This argument is rejected for several reasons.
First, Plaintiff did not timely raise this objection in its opposition papers. Rather, Plaintiff only raised this objection for the first time in a fax that was sent to the Court on the morning of the September 2, 2015 hearing, six days after this motion had been fully submitted. Therefore, Plaintiff waived any argument that this motion was not timely made.
Second, Plaintiff's argument is based upon the date that the nonjury verdict was signed, not the date that it was entered in the Clerk's Office. However, the relevant fifteen-day time period begins to run on the date of entry. [Cone Mills Corp., v. Becker, 67 Misc2d 749, 750 (Sup. Ct. Nassau County 1971); Wierzbieniec v. Przewlocki, 54 Misc2d 83, 84 (Sup. Ct. Erie County 1967); Arlen of Nanuet, Inc., v. State, 52 Misc2d 1009, 1010 (Sup. Ct. 1967)]. Here, the nonjury verdict was entered in the Clerk's Office on July 8, 2015, and Defendant filed the motion to vacate on July 20, 2015. Therefore, the motion was timely made within the relevant fifteen-day time period.
Finally, the fifteen-day time period set forth in CPLR §4405 has not been strictly construed. [see Pioli v. Morgan Guaranty Trust Company of New York, 199 AD2d 144, 148 (1st Dept. 1993)], particularly when there has been no showing of prejudice associated with a relatively short delay in filing such a motion [see Estate of Peterson v. See, 23 Misc3d 1, 3 (Sup. Ct., App Term., 9th and 10th Jud. Dist. 2009); Mora v. Cassino, 196 Misc2d 403, 404-05 (N.Y. Civ. Ct. 2003)]. Indeed, a trial court may freely ignore this fifteen-day time period when it seeks to set aside a decision in a nonjury case on its own initiative. [Matter of Alison VV, 211 AD2d 988, 989 (3d Dept. 1995)].
Even if the statutory fifteen-day time period arguably began to run when the nonjury verdict was signed, the motion was filed a mere three days after the statutory time period lapsed, and Plaintiff has not demonstrated that she will suffer any prejudice if the Court entertains this motion. Accordingly, even if this motion was arguably filed after the expiration of the fifteen-day time period, this Court exercises its statutory authority to extend the time fixed by any statute for the performance of an act [CPLR §2004], and upon such extension will entertain Defendant's motion to vacate or set aside the nonjury verdict [see Johnson v. Suffolk County Police Department, 245 AD2d 340, 341 (2d Dept. 1997)].
Plaintiff also opposes Defendant's CPLR §4404(b) motion to vacate the nonjury verdict on the grounds that Defendant failed to make a CPLR §4401 motion for a directed verdict at the close of Plaintiff's case. Plaintiff argues that Defendant's failure to move for a directed verdict implicitly conceded that there were triable issues of fact regarding Plaintiff's damages for past and future household services, and that Defendant is therefore now precluded from making a CPLR §4404(b) motion arguing that these damages were not supported by the evidence at trial.
However, none of the cases that Plaintiff relies on in support of this argument have any bearing on a CPLR §4404(b) motion to vacate a nonjury verdict. Rather, those cases focus exclusively on a CPLR §4404(a) motion to vacate a jury verdict. Because the standard for granting a CPLR §4404(a) motion to vacate a jury verdict is different than the standard for granting a CPLR §4404(b) motion to vacate a nonjury verdict, the cases relied upon by Plaintiff are wholly inapplicable.
Specifically, under CPLR §4404(a), a court may set aside a jury verdict and direct that judgment be entered in favor of a party entitled to judgment as a matter of law. Alternatively, a court may set aside a jury verdict and order a new trial if the verdict is contrary to the weight of the evidence, or in the interest of justice. Under CPLR §4404(b), a trial court may set aside its decision or any judgment entered thereon; may make newfindings of fact or conclusions of law, with or without taking additional testimony; may render a new decision and direct entry of judgment; and may order a new trial.
The cases cited by Plaintiff stand for the proposition that a party must make a motion for a directed verdict pursuant to CPLR §4401 in order to preserve for appellate review the denial of a CPLR §4404(a) motion seeking judgment as a matter of law. These cases do not also require a party to make a motion for a directed verdict to preserve for appellate review the denial of a CPLR §4404(a) motion seeking a new trial. Therefore, to the extent that Defendant's motion seeks a new trial, rather than entry of judgment as a matter of law, the cases cited by Plaintiff do not preclude that motion regardless of whether the challenged verdict was rendered by a jury or by the court.
More importantly, the cases cited by Plaintiff have no bearing on a CPLR §4404(b) motion to vacate and set aside a nonjury verdict. Simply put, a motion to vacate a nonjury verdict pursuant to CPLR §4404(b) is not subject to the same procedural limitations that constrain a motion to vacate a jury verdict. [Siegel, McKinney's Practice Commentaries to CPLR §4404, C4404:6 "].
Plaintiff has not cited any cases that support her claim that a motion for a directed verdict is a mandatory predicate for a CPLR §4404(b) motion to vacate a nonjury verdict. The Court's independent research also fails to reveal any cases that support this argument. Therefore, recognizing the increased flexibility that the Legislature has extended to a motion to vacate a nonjury verdict, the Court holds that Defendant was not required to move for a directed verdict at the close of Plaintiff's case in order to make this CPLR §4404(b) motion to dismiss Plaintiff's lost household services claim as a matter of law.
Defendant seeks an Order vacating that portion of the nonjury verdict that awarded Plaintiff damages for lost household services. Specifically, the nonjury verdict awarded $16,000.00 to Plaintiff as damages for lost household services prior to the verdict. The nonjury verdict also awarded $353,758.00 to Plaintiff as damages for future lost household services.
As explained in the nonjury verdict, these damages were based upon the unrefuted testimony of Plaintiff's expert, Dr. Thomas Fitzgerald, who holds a Ph.D. in economics from Rutgers University. Dr. Fitzgerald testified as an expert in the field of evaluating pecuniary loss in wrongful death and personal injury actions, with a specialty in valuing economic loss.
Dr. Fitzgerald's testimony as to the value of the decedent's lost household services was based upon statistical studies that calculate the value of these services for a typical two-person household based upon a variety of factors, including the age of the members of that household. That testimony was based solely on these statistical studies, and was not based upon any information obtained from the decedent's family. Although Defendant also retained an expert witness regarding economic issues, Defendant did not call that expert witness at trial.
Defendant argues that the damages awarded for lost household services by the nonjury verdict must be vacated because Plaintiff failed to submit any evidence to support her lost household services claim. Specifica...
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