Lakhani v Shiyao Ding

[*1] Lakhani v Shiyao Ding 2015 NY Slip Op 51543(U) Decided on October 27, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 27, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Ling-Cohan, JJ.
570377/15

Iqbal Lakhani a/k/a Mohammed Iqbal, Plaintiff-Appellant, -

against

Shiyao Ding, Ning Kang, Venus Bedding USA, Inc. a/k/a Jiaolu Tex (Nantong) China Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Lynn R. Kotler, J.), dated March 1, 2015, which denied his posttrial motion for leave to "reconsider and reargue" a judgment rendered in favor of defendants.

Per Curiam.

Order (Lynn R. Kotler, J.), dated March 1, 2015, affirmed with $10 costs.

No basis was shown to vacate the (unappealed) judgment in favor of defendants after trial of this action for breach of an employment agreement and related claims. Plaintiff's posttrial motion, erroneously denominated as one for leave to reargue, was, in effect, a motion to set aside the verdict pursuant to CPLR 4404(b) (see Casey v Slattery, 213 AD2d 890 [1995]). Inasmuch as the motion was made more than four months after rendition of the court's verdict, it was untimely (see CPLR 4405), plaintiff having failed to offer "an overriding and persuasive reason" (Barnes v Oceanus Nav. Corp., Ltd., 21 AD3d 975, 977 [2005]) warranting its consideration.

To the extent that plaintiff's motion can be deemed as one seeking a new trial on the basis of purportedly newly discovered evidence (see CPLR 5015[a][2]), plaintiff failed to demonstrate that such evidence could not have been discovered with due diligence prior to the conclusion of trial (see Bongiasca v Bongiasca, 289 AD2d 121, 122 [2001]). In any event, the new evidence, even if timely submitted, would not have changed the outcome of the trial (see Olwine, Connelly, Chase, O'Donnell & Weyher v Valsan, Inc., 226 AD2d 102 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 27, 2015