Sisters of Charity Healthcare Sys. v Zarelli

[*1] Sisters of Charity Healthcare Sys. v Zarelli 2007 NY Slip Op 51341(U) [16 Misc 3d 130(A)] Decided on July 3, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-351 RI C.

Sisters of Charity Healthcare System ST. VINCENT'S MEDICAL CENTER OF RICHMOND COUNTY, Respondent,

against

Rae Zarelli, Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered December 20, 2005. The order denied defendant's motion to vacate a decision, entered after a nonjury trial, in the principal sum of $1,879.

Order affirmed without costs.

Plaintiff commenced this action to recover for services rendered. After a nonjury trial, the court (Kathy J. King, J.) found in favor of plaintiff. More than four months after the decision was filed, the pro se defendant moved to vacate the decision (see generally CPLR 4404). Section 4405 of the CPLR provides that:
"A motion under this article shall be made before the judge who presided at the trial within fifteen days after decision, verdict or discharge of the jury. The court shall have no power to grant relief after argument or submission of an appeal from the final judgment."

It has been held that the 15-day period runs not from the date of the decision, but from the day on which the decision is filed (see Bernstein v Swidunovich, 44 Misc 2d 728 [1965]; Siegel, [*2]Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 4405). In the case at bar, the decision was filed on January 31, 2005 and defendant moved to vacate the decision on June 15, 2005, more than four months later. The defendant offers no excuse for the delay (cf. Steinberg v State Farm Mut. Auto. Ins. Co., 181 AD2d 766 [1992]). Consequently, the order of the court below should be affirmed (Kahan v Sulaymanov, 24 AD3d 612 [2005]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: July 03, 2007