Chang v Botsacos

Chang v Botsacos 2012 NY Slip Op 01501 Decided on February 28, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 28, 2012
Mazzarelli, J.P., Andrias, Catterson, Abdus-Salaam, Manzanet-Daniels, JJ.
6916 2242/86

[*1]Janet Chang, etc., Plaintiff-Respondent,

v

Laraine Botsacos, etc., Defendant-Appellant.




Maroney O'Connor LLP, New York (Ross T. Herman of
counsel), for appellant.
Daniel R. Wotman & Associates, PLLC, Great Neck (Daniel
R. Wotman of counsel), for respondent.

Judgment, Supreme Court, New York County (Louise Gruner Gans, J.), entered August 10, 2010, after a jury trial, awarding plaintiff the total amount of $8,708,490, unanimously affirmed, without costs.

Defendant failed to preserve her arguments that entry of the judgment was untimely pursuant to 22 NYCRR 202.48(a) (see McCue v McCue, 225 AD2d 975, 976 [1996]), and that plaintiff abandoned the action pursuant to 22 NYCRR 202.48(b) (see Meldrim v Hill, 260 AD2d 836, 839 [1999]). Were we to reach these arguments, we would find that the 60-day time limit in 22 NYCRR 202.48(a) "applies only where the court explicitly directs that the proposed judgment or order be settled or submitted for signature" (Funk v Barry, 89 NY2d 364, 365 [1996]). Here, there was no such explicit direction (see Meldrim at 839; McCue at 976-977).

Defendant Thomas Cartelli was deposed before trial but had died by the time of trial. Contrary to defendant's contention, plaintiff's reading of Cartelli's deposition testimony at the trial did not violate the Dead Man's Statute (CPLR 4519; see Tepper v Tannenbaum, 87 Misc 2d 829, 838 [1976], revd on other grounds 65 AD2d 359 [1978]; CPLR 3117[a][3][i]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 28, 2012

CLERK