Kaiser v DeGeorge

[*1] Kaiser v DeGeorge 2009 NY Slip Op 52518(U) [25 Misc 3d 1240(A)] Decided on December 4, 2009 Supreme Court, Suffolk County Rebolini, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 4, 2009
Supreme Court, Suffolk County

Carmela Kaiser, Plaintiff,

against

Philip D. DeGeorge and Lorrie A. Fernalld, Defendants.



23898/2005



Attorney for Plaintiff:

Miller, Montiel & Strano, P.C.

99 Powerhouse Road, Suite 104

Roslyn Heights, NY 11577

Attorney for Defendants:

Baxter Smith & Shapiro, P.C.

99 North Broadway

Hicksville, NY 11801

William B. Rebolini, J.

In an action for damages for personal injuries the defendants move for an order "pursuant to CPLR §2219" deciding a prior motion by defendants and "pursuant to CPLR §§5015, 5016 and 5019" vacating or modifying the judgment herein. Plaintiff opposes the motion.

The prior motion to which defendants refer in their current motion was made on June 4, 2009, returnable June 24, 2009. It was returned to counsel by the Clerk of the Court (summary jury part clerk) with a written communication dated July 6, 2009, stating that which is reflected in the Court's rules for the summary jury trial part, to wit, that no motions are permitted where, as here, counsel have bound themselves and their clients to the summary jury trial form stipulation. Rule 4 of the summary jury part rules, states clearly "No Motion Practice: The parties shall execute a written stipulation agreeing to withdraw any pending motions filed in the case and agreeing not to file any written motions subsequent to the execution of the written stipulation." The form stipulation - the one utilized and signed by counsel for both parties herein - states, in relevant part, "...the parties hereto agree not to file any written motions subsequent to the execution of the Stipulation" (see stipulation and order to transfer action to binding summary jury trial part dated February 24, 2009 (Baisley, Jr., J.), exhibit "A" to affirmation of Anne Marie Garcia dated August 11, 2009). [*2]

Both the current motion and the earlier motion - which the Clerk rejected as running afoul of the rule embodied in the stipulation - are violative of that which was agreed to on February 24, 2009, inter alia, that no motions would be made. There has been a waiver of the right to make motions. The stipulation is a binding agreement clear on its face. The benefits and limitations of the summary jury trial procedures having been embraced by both parties' entry of the stipulation and the stipulation being valid and subsisting throughout (since entered February 24, 2009), that is, not having been set aside, its unambiguous provision prohibiting any motions is applied and defendants' motion must be and is denied.

In any event, the defendants' contentions in support of its motions are rejected as without merit. The gravamen of the issue is whether the "high" parameter in the stipulation includes the (approximately) $14,000 interest reflected in the judgment actually entered after the summary jury trial (see exhibit "E" to affirmation of Anne Marie Garcia). Herein, the parties' attorneys clearly evinced the intent that interest (from the date liability was determined by interlocutory judgment dated November 5, 2007 (Arthur G. Pitts, J.)) was to be awarded to plaintiff; this intention was expressed in the undisputed, handwritten language added to the form stipulation's printed wording concerning the high and low parameters, in this case $10,000 to $100,000. If the defendants had intended that the total damages (i.e., both the principal plus the interest expressly agreed to) under no circumstance should exceed $100,000 in total they could have expressed that intention; they did not do so and the reason for the failure to do so is not pertinent. As written, the stipulation is clear and unambiguous and resort to extrinsic evidence is not required or permitted (see, Willsey v. Gjuraj, 65 AD3d 1228 [2nd Dept., 2009]). Moreover, the prohibition on motions contained in the stipulation is not in any way restricted to CPLR §44 motions as defendants contend. The defendants' motions are inconsistent with their obligation under the summary jury trial Rule 4; the Court notes in conjunction with such observation that it is frustrated by the circumstance that a procedure meant, inter alia, to dispense with the proliferation of motions which it deals with in other (non summary jury trial) civil cases in its inventory and is also meant to provide expeditious relief to parties who have their trials streamlined has in point of fact been foiled by the defendants' two post verdict motions herein (the present and prior motions). In order to prevent further abuse of the intended procedure the defendants' attorney is cautioned that any further motions will be considered in view of the provisions of 22 NYCRR Part 130.

So ordered.

Dated: December, 2009

HON. WILLIAM B. REBOLINI, J.S.C.