Huggins v Velaoras

[*1] Huggins v Velaoras 2009 NY Slip Op 51722(U) [24 Misc 3d 141(A)] Decided on July 29, 2009 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-1255 K C.

Matthew Huggins, Respondent,

against

Demetrios Velaoras, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered April 3, 2008. The order denied defendant's motion to set aside a jury verdict on the issue of liability.

Order affirmed without costs.

The instant action arises out of a collision at an intersection controlled by a traffic light. At a jury trial on the issue of liability, both drivers testified that the other driver's vehicle went through a red light. An independent witness testified on defendant's behalf and supported defendant's version of the circumstances surrounding the accident. Immediately after the jury rendered its verdict, finding that defendant was negligent and that his conduct was entirely responsible for the accident, defense counsel orally moved to set aside the verdict as against the weight of the evidence (CPLR 4404). The court asked that a written motion be made within 45 days. When defendant did not make its written motion until more than one month after the expiration of that time period, the Civil Court denied the motion as untimely. The instant appeal ensued, and we affirm.

A motion to vacate a jury verdict made outside the 15-day time limit set forth in CPLR 4405 may be denied as untimely (see e.g. Brzozowy v ELRAC, Inc., 39 AD3d 451 [2007]). Even where the court extends the time period for making the motion, however, the movant will be required to show "good cause" for any further delay in making the motion (see CPLR 2004; Casey v Slattery, 213 AD2d 890 [1995]). In the instant case, as defendant did not offer any explanation for not complying with the schedule imposed by the trial court, he did not demonstrate good cause. Consequently, it was not an improvident exercise of discretion for the trial court to deny the motion as untimely (see Coutrier v Haraden Motorcar Corp., 237 AD2d 774 [1997]). [*2]

In any event, even if we were to reach the merits, our determination that the verdict should not be set aside would be the same, since the record establishes that the jury's verdict in favor of plaintiff was based upon a fair interpretation of the evidence and, thus, was not against the weight of the credible evidence (see Nicastro v Park, 113 AD2d 129 [1985]).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 29, 2009