Author: DMG

Defendants are not entitled to dismissal of the complaint pursuant
to CPLR 3211(a)(1), since they have not demonstrated that the
documentary evidence definitively resolves all material issues of fact,
thereby resulting in the failure of plaintiff's claim as a matter of
law (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144 [2002]; Foster v Kovner, 44 AD3d 23,
28 [2007]). Accepting as true the facts alleged in the complaint for
the purpose of the motion, according plaintiff the benefit of every
favorable inference, and determining whether the facts as alleged fit
any cognizable legal theory (see Leon v Martinez, 84 NY2d 83,
87-88 [1994]), we reject the argument that defendant Spahn owned her
share of the property individually as a tenant in common, since all of
the individual owners transferred their equity interests in the
property to a family partnership set up for that purpose. Spahn
allegedly violated the terms of the partnership agreement, which
required her to obtain the consent of the remaining partners prior to
selling or assigning her interest in the property.

Defendants are also not entitled to dismissal under CPLR
3211(a)(3), lacks the capacity to sue as co-executrix. A fiduciary has
an obligation to protect the interests of the estate especially where a
co-fiduciary is alleged to have acted to the contrary (see SCPA 2102 [6]; Matter of Wallens, 9 NY3d 117 [2007]; Birnbaum v Birnbaum, 73 NY2d 461 [1989]; see also Matter of Donner, 82 NY2d 574 [1993]).

Plaintiffs moved pursuant to CPLR 4404 for various alternative relief including setting aside the verdict regarding pain and suffering and loss of consortium, assessing a damage award for such items, or directing a new trial. Supreme Court denied the motion. Plaintiffs appeal.

We find merit in plaintiffs’ argument that Supreme Court placed unduly restrictive time constraints on the questioning of prospective jurors. Over plaintiffs’ objections, both before and after voir dire, the court limited questioning in each round to 15 minutes. While the trial court is accorded discretion in setting time limits for voir dire (see 22 NYCRR 202.33; Horton v Associates in Obstetrics & Gynecology, 229 AD2d 734, 735 [1996] [60 minutes for first round and 30 minutes for subsequent rounds upheld]), the 15 minutes allowed for each round under the circumstances of this case was unreasonably short (see “Implementing New York’s Civil Voir Dire Law and Rules,” http://www.nycourts.gov/publications/pdfs/ImplementingVoirDire 2009.pdf [New York State Unified Court System, Jan. 2009, accessed Feb. 25, 2009], at 6 [stating that “(i)n a routine case a reasonable time period to report on the progress of voir dire is after about two or three hours of actual voir dire”]). This case involved close factual and medical issues, and evidence from several experts was presented at trial. Issues implicated involved, among others, proof regarding four distinct injuries and four surgeries, challenges to causation regarding each injury, the relevance and impact of plaintiff’s preexisting conditions, the weight to be given evidence from several experts with markedly varying opinions, and consideration of appropriate compensation for a variety of asserted injuries. Notwithstanding that liability was not an issue, the case was not simple and straightforward. We cannot conclude from this record that plaintiffs were not prejudiced by the extremely short time permitted for voir dire.

Adding credence to plaintiffs’ first argument is the merit of their next argument, i.e., the jury’s verdict deviated materially from reasonable compensation. Initially, we note as to the reasonable compensation issue that, contrary to defendant’s contention, the issue is properly before us (see Califano v Automotive Rentals, 293 AD2d 436, 437 [2002]; see also Smith v Sheehy, 45 AD3d 670, 671 [2007]). Although “[i]t is well settled that the amount awarded as damages for personal injuries is a factual question for the jury and considerable deference must be accorded to the jury with regard to the interpretation of the evidence . . . and assessments of credibility” (Molter v Gaffney, 273 AD2d 773, 773 [2000] [internal quotation marks and citations omitted]; see Johnson v Grant, 3 AD3d 720, 722 [2004]), nevertheless a jury verdict will generally be considered flawed when a serious injury under the No-Fault Law is found or conceded, but the jury then makes no award for pain and suffering (see Vogel v Cichy, 53 AD3d 877, 880 [2008]; Gillespie v Girard, 301 AD2d 1018, 1018-1019 [2003]; Califano v Automotive Rentals, 293 AD2d at 437; see also Hayes v Byington, 2 AD3d 1468, 1469 [2003]; Ciatto v Lieberman, 1 AD3d 553, 557 [2003]; 8 Weinstein-Korn-Miller, NY Civ Prac ¶ 4404.22). Here, making no award for past pain and suffering after finding that plaintiff sustained a serious injury was a material deviation from reasonable compensation. Moreover, it cannot be discerned from the record which injuries the jury found were related to the accident or which one (or more) they found to be a serious injury. Under such circumstances, and in light of both the previously discussed error in voir dire and the likelihood that the verdict resulted from an impermissible compromise, we conclude that a new trial on all issues (except liability which defendant conceded) is required (cf. Ciatto v Lieberman, 1 AD3d at 557; Califano v Automotive Rentals, 293 AD2d at 436-437).

After the plaintiffs failed to file a note of issue in compliance
with a certification order dated July 8, 2005, the action was dismissed
pursuant to CPLR 3216 on October 28, 2005. Almost two years later, the
plaintiffs moved, in effect, to vacate the dismissal and to restore the
action to the active calendar. The Supreme Court denied the plaintiffs'
motion on the ground that the plaintiffs failed to provide an affidavit
of merit from a medical expert. The plaintiffs subsequently moved,
inter alia, for leave to renew their motion to vacate, supported by a
physician's affidavit of merit. The court denied that branch of the
plaintiffs' motion which was for leave to renew, finding that the
plaintiffs had failed to establish a valid excuse for not submitting
the expert affidavit with the prior motion to vacate.

A motion for leave to renew must be based upon new facts not offered on the prior motion [*2]that
would change the prior determination, and the motion must also contain
a reasonable justification for the failure to present such facts on the
prior motion (see CPLR 2221[e]; Chunqi Liu v Wong, 46 AD3d 735; Peycke v Newport Media Acquisition II, Inc., 40 AD3d 722; Williams v Nassau County Med. Ctr., 37 AD3d 594).
Here, the affidavit of merit, which was conclusory, would not have
changed the prior determination, as it was insufficient to establish
that the medical malpractice action was meritorious (see Nowell v NYU Med. Ctr., 55 AD3d 573, 574; Bollino v Hitzig, 34 AD3d 711; Perez v Astoria Gen. Hosp.,
26 AD2d 457, 458). Since the new affidavit proffered by the plaintiffs
would not have changed the prior determination, that branch of the
plaintiffs' motion which was for leave to renew was properly denied (see Peycke v Newport Media Acquisition II, Inc., 40 AD3d 722; Williams v Nassau County Med. Ctr., 37 AD3d 594).