’INDEX'NO. 19021972016
`INDEX NO. 190219/2016
`FILED: NEW YORK COUNTY CLERK 03/06/2018 11:57 AM
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`FILED: NEW YORK COUNTY CLERK 032018 11:57 AM
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`RaCaIVaD VYSCEF: 03/06/2018
`NYSCEF DOC. NO. 1004
`RECEIVED NYSCEF: 03/06/2018
`NYSCEF DOC. NO. 1004
`SUPREME COURT OF THE STATE OF NEW YORK — NEW YORK COUNTY
`PRESENT:
`HON. MARTIN SHULMAN
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`PART
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`1
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`Ann Marie ldell, et al,
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`- v -
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`Aerco International, et al.
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`Justice
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`INDEX NO.
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`190219/16
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`Motion Seq. 042
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`The following papers, numbered 1 to 4 were read on this motion to reargue
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`PAPERS NUMBERED
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`Notice of Motion - Affirmations - Exhibits A-Y (NYSCEF 961-988
`Answering Aff./Cross-Motion - Exhibits 1-6; Mem. of Law (NYS EF 990-997)
`Reply Aff. - Exhibits A-D
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`1, 2
`3
`4
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`Cross-Motion:
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`Yes
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`I:I No
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`In this products liability (asbestos exposure) action, a jury inter alia returned a
`verdict on August 17, 2017, awarding then-living plaintiff Thomas McGlynn (plaintiff) $1.8
`million for past pain and suffering and $1.5 million for future pain and suffering to cover a
`minimum period of six months and up to a maximum period of one year. Both parties
`filed post-verdict motions, and this court issued a bench decision on December 14, 2017
`(Dec. 14‘“ decision), entirely denying defendant Jenkins Bros.’s (Jenkins) motion for
`judgment of dismissal notwithstanding the verdict, but granting plaintiff’s CPLR §5501[c]
`motion for additur. Reciting appropriate decretal directives, the Dec. 14‘“ decision
`increased damages awards for past pain and suffering to $4 million and for future pain
`and suffering to $2.5 million.
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`Under this court’s 30 daytime deadline to either stipulate to these additur sums
`without prejudice to perfecting its appeal or opt for a re-trial on damages, Jenkins
`submitted a proposed order to show cause to extend its time to consider whether to
`stipulate to the increased award of $6.5 million. At a court hearing on January 16, 2018,
`this court learned that in addition to its time extension request, Jenkins was seeking to
`reargue this court’s Dec. 14‘“ decision and bolster its potential appellate record with
`“new” arguments and documentation it was fully capable of presenting during the prior
`round of post-verdict motion practice. By refusing to sign the order to show cause, this
`court implicitly denied Jenkins’ reargument motion, but directed the parties to negotiate a
`written agreement regarding Jenkins’ time extension request. On January 31, 2018, this
`court so-ordered a two attorney stipulation extending “Jenkins’ time to decide whether to
`stipulate to the Court’s additur increasing the jury’s award .
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`. to a date on or before
`fourteen (14) days following the decision to be announced by the Appellate Division,
`First Department, in Jenkins’ currently pending appeal of [this court’s Dec. 14‘“
`Decision].”
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`Apparently not satisfied, Jenkins again submitted a second proposed order to
`show cause seeking the identical additional relief sought in its first proposed order to
`show cause and after hearing arguments on February 14, 2018, this court made it clear
`that its Dec. 14‘“ decision was the last word on every issue raised and argued in Jenkins’
`post-verdict motion. Parenthetically, Jenkins was afforded a full and fair opportunity to
`raise every conceivable argument and/or submit documentation to support a post—
`trial judgment of dismissal notwithstanding the verdict and, alternatively, to sustain the
`jury verdict and deny plaintiff’s additur motion. Thus, this court issued a decision
`declining to sign the proposed order to show cause. Jenkins’ counsel was advised that it
`could exercise its remedies pursuant to CPLR §5704(a), if it deemed it appropriate.
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`FORTHEFOLLOWINGREASON(S):
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`MOTION/CASEISRESPECTFULLYREFERREDTOJUSTICE
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`FILED: NEW YORK COUNTY CLERK 03/06/2018 11:57 AM
`FILED: NEW YORK COUNTY CLERK 03m2018 11:57 AM
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`NYSCEF DOC. NO. 1004
`NYSCEF DOC. NO. 1004
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`INDEX NO. 190219/2016
`INDEX NO~ 190219/2016
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`R«.C«.IV«.D \iYSCEF: 03/06/2018
`RECEIVED NYSCEF: 03/06/2018
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`Instead, Jenkins re—formatted its second proposed order to show cause for
`reargument/ renewal to a motion returnable on February 28, 2018. Incredibly, Jenkins
`annexed an emergent affirmation grounded on a looming deadline Of its own making to
`perfect its appeal of the Dec. 14th decision. This left plaintiff’s counsel no choice but to
`expend time and money filing a memorandum of law in opposition and perforce make a
`cross-motion for sanctions. Both the motion and cross-motion are consolidated for
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`disposition.
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`This court did not misapprehend or overlook any facts or law or mistakenly
`proffered reasons underlying the Dec. 14th decision. See Foley v Roche, 68 AD2d 558
`(1st Dept 1979)(motions for reargument, addressed to the discretion of the court, are
`designed to afford a party an opportunity to establish that the court overlooked or
`misapprehended the relevant facts, or misapplied any controlling principle of law). The
`“new” material (e.g., damages evidence and verdicts in Snowda/e, Andrucki, as well as
`evidence and the legal impact, if any, of plaintiff’s death after the August 2017 verdict)
`were all capable of being produced in support of Jenkins’ post-verdict motion well before
`the issuance Of the Dec. 14th decision.
`lllustratively, Jenkins could have sent a letter
`apprising the court to take judicial notice of the Snowdale verdict rendered at the time
`the parties’ post verdict motions were fully submitted.
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`This court is not unmindful that its declination orders prevented Jenkins from
`adding its “new” matter to the record on its planned appeal, which was otherwise more
`than adequate. Nonetheless, Jenkins’ appellate record bolstering motion is
`substantivally untimely. Accordingly, and for purposes of appellate review, this court
`must reject the “new” information (i.e, those various exhibits annexed to the Dinunzio
`affirmation in support of Jenkins’ motion never proffered and discussed in Jenkins’
`original post—verdict motion), and deem same dehors the record. Nor will this
`court consider new arguments with alleged documentary support Jenkins now makes for
`the first time in rearguing the Dec. 14th decision. Accordingly, Jenkins’ third attempt at
`reargument disguised as a renewal motion is denied.
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`Finally, despite the multiple attempts made to reargue the Dec. 14th decision,
`none of which was predicated upon proper grounds pursuant to CPLR 2221 (e.g.,
`presenting new arguments and documentation which could have been presented during
`post-verdict motion practice), this court’s declination orders left Clyde & Co US, LLP,
`counsel for defendant Jenkins Bros., no choice in its quixotic quest to expand the record
`for its appeal. The better practice would have been to file its reargument motion the first
`time. Thus, plaintiff’s cross-motion for costs must be denied.
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`Accordingly, it is
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`ORDERED that Jenkins Bros.’ motion is denied; and it is further
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`ORDERED that plaintiff’s cross-motion for sanctions is also denied.
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`The foregoing is this court’s decision and order. 2
`Dated: March 2 2018
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`; §)MN \
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`Martin hulman, J.S.C.
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`Check one: El FINAL DISPOSITION
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`Zl NON-FINAL DISPOSITION
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`Check ifappropriate: D DO NOT POST
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`El REFERENCE
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