She Sum Yip v 27-35 Jackson Ave., LLC
Annotate this CaseDecided on September 27, 2013
Supreme Court, Queens County
She Sum Yip, Plaintiff,
against
27-35 Jackson Avenue, LLC, Defendant.
22044/02
Bernice D. Siegal, J.
The following papers numbered 1 to 14 read on this motion for an order pursuant to 22 NYCRR §202.48(a), deeming this action abandoned and consequently dismissed.
PAPERS
NUMBERED
Notice of Motion - Affidavits-Exhibits..................................1 - 4
Cross-Motion.........................................................................5-9
Affirmation in Reply and in Opposition to Cross-Motion.....10 - 12
Reply Affirmation...................................................................13 - 14
Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:
Defendant moves for an order pursuant to 22 NYCRR 202.48(a), deeming this action abandoned and dismissed. Plaintiff cross-moves for an order pursuant to CPLR 5019, amending the final judgment received by the clerk on March 13, 2013 and updating the continued accruing interest on the previously entered jury verdict Final Judgment entered on March 25, 2013 to the date of the amended Final Judgment is entered.
Facts
Plaintiff brought the within action for personal injuries sustained as a result of defendant negligence in the care and maintenance of the premises.
The matter proceeded to trial on February 2, 2009 wherein the Defendant was found liable [*2]and ordered to pay the sum of $50,000 for past pain and suffering and an additional $25,000 for future pain and suffering. A collateral source hearing was then held before this court on Januay 18, 2012 wherein the parties agreed to, with approval from the court, finalize the collateral source hearing in the amount of $25,000 "and the plaintiff is directed to file the appropriate papers with dispatch."
On March 13, 2013, plaintiff's counsel filed a "Final Judgment" in the amount of $129,961.64 with the County Clerk.
Defendant's motion to deem the action abandoned is denied and Plaintiff's cross-motion to amend the Final Judgment is granted as more fully set forth below.
Discussion
Motion to Deem Action Abandoned
Pursuant to 22 NYRCRR 202.48(a); "[p]roposed orders or judgments ... must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted." "Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown." (22 NYCRR 202.48(b).) "It is within the sound discretion of the court to accept a belated order or judgment for settlement." (Russo v. Russo, 289 AD2d 467, 468 [2nd Dept 2001]; Dime Sav. Bank of New York, FSB v. Anzel, 232 AD2d 446 [2nd Dept 1996].) However, 22 NYCRR 202.48 is inapplicable to the within matter because 202.48 only applies to judgments or orders where the court has issued a prior order requiring one of the parties to submit a proposal for such judgment or order. (Funk v Barry, 89 NY2d 364 [1996][holding that the 60-day period applies only where the court explicitly directs that the proposed judgment or order be settled or submitted for signature.].) In Funk, the Court of Appeals differentiated between judgments that can be entered by the clerk without a submission to the court and, for example, a Judge's request for a proposed order/judgment that may required counter-proposals. In the within action, Plaintiff was able to enter the judgment in the clerk's office pursuant to CPLR §5016. With respect to CPLR §5016, there is no time limit on completion of entry of a judgment after a verdict or decision. (Church v. New York State Thruway Authority, 16 AD3d 808 [3rd Dept 2005]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 5016.) Furthermore, "a losing party who feels aggrieved by the prevailing party's failure to seek entry may have the judgment entered and need not wait for the prevailing party to act." (Funk v Barry, at 368.)
Accordingly, Defendant's motion to deem the within action as abandoned pursuant to 22 NYCRR 202.48 is denied.
Cross-Motion to Amend the Final Judgment
Plaintiff cross-moves for an order amending the "Final Judgment" that was entered on March 25, 2013, directing the Court Clerk to calculate further pre-judgment interest at 9% pursuant to CPLR §5004 to the amount of $25,000 starting from January 18, 2012[FN1] to the date that the Final Judgment is entered pursuant to CPLR §5002 and updating the continued accruing interest on the previously entered jury verdict Final Judgment entered on March 25, 2013 pursuant to CPLR 5002.
A claimant in a bifurcated personal injury action is entitled to an award of prejudgment interest from the date of the decision establishing liability rather than the date of the decision fixing [*3]damages. (Love v. State of New York, 78 NY2d 540 [1991]; Gunnarson v. State, 70 NY2d 923 [1987].) The rationale behind these cases is that the plaintiff's right to be made whole becomes fixed in law when the verdict holding the defendant liable is rendered. (Love v. State of New York, supra.)Plaintiff contends that Defense counsel requested a hearing to determine the amount of the Worker's Compensation Lien debt that was attributable to the subject personal injury accident. Plaintiff argues that it took months to obtain the records necessary for the hearing. After the records were allegedly sent to Justice Satterfield's courtroom[FN2], Plaintiff contends the records went missing forcing Plaintiff to once again obtain the records for a hearing before this court. The hearing was ultimately held on January 18, 2012 before Justice Bernice D. Siegal. The Judgment was thereafter received by the Court Clerk on March 13, 2013 and entered on March 25, 2013. "Regardless of who is responsible, the fact remains that the plaintiff has been deprived of the use of money to which he or she was entitled from the moment that liability was determined. That is a loss for which the plaintiff should be compensated." (Love v State of New York, 78 NY2d 540 [1991][holding that Plaintiff was entitled to prejudgment interest from the date of the liability verdict regardless of who was at fault for the more than 10 month delay].) In addition, while Defendant contends that the cause of the delay lays at the feet of Plaintiff, "[t]he cause of the delay between verdict and judgment is not the controlling factor."(Sawtelle v Southside Hosp., 305 AD2d 659 [2nd Dept 2003].)
For the reasons set forth above, Plaintiff's cross-motion to amend the Final Judgment is granted.
Conclusion
For the reasons set forth above, it is
ORDERED that Defendant's motion to deem the within action as abandoned is denied.
ORDERED that Plaintiff's cross-motion for an order amending the "Final Judgment" that was entered on March 25, 2013, directing the Court Clerk to calculate further pre-judgment interest at 9% pursuant to CPLR 5004 to the amount of $25,000 starting from January 18, 2012 to the date that the amended Final Judgment is entered pursuant to CPLR 5002 and updating the continued accruing interest on the previously entered jury verdict Final Judgment entered on March 25, 2013 to the date the amended Final Judgment is entered pursuant to CPLR 5002 is granted.
ORDERED that the Clerk shall enter judgment accordingly.
Dated:September 27, 2013___________________________
Bernice D. Siegal, J. S. C.
Footnotes
Footnote 1:The date of the collateral source hearing so-ordered stipulation.
Footnote 2:The within matter was originally heard before Justice Satterfield before she retired.
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