INDEX NO. 62770/2017
` FILED: WESTCHESTER COUNTY CLE “"3 "£3211?
`FILED: WESTCHESTER COUNTY CLERK 03/04/2019 04:18 PM
`
`NYSCEF DOC . NO .
`1 5 4
`ofright (REEEfiVEfl), MMEGSEIEQ to 989/20 4 / 2 0 1 9
`NYSCEF DOC. NO. 154
`RECEIVED NYSCEF: 03/04/2019
`copy ofthis order, with notice ofentry, upon all parties.
`
`Seq. Nos.#6-7_
`Dec _xk
`Disp __
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF WESTCHESTER
`
`Type _misc.7
`
`PRESENT: HON. LINDA S.
`
`JAMIESON
`
`
`
`Eizééézliafiéf 11:: ____________________ X
`Plaintiff,
`
`-against—
`
`-.
`INC. , ERICH GOLF, LLC,
`THE LANDTEK GROUP,
`IRVINGTON UNION FREE SCHOOL DISTRICT and
`HANOVER INSURANCE COMPANY,
`
`Defendants.
`
`______________________________________ X
`
`Index No. 62770/17
`
`DECISION AND ORDER
`
`The following papers numbered 1 to 5 were read on these
`motions:
`
`gape;
`
`'
`
`Number
`
`Notice of Motion, Affidavit and Exhibits
`
`.
`
`Notice of Cross—Motion, Affirmation and Exhibits
`Affidavit
`in Support
`‘
`
`Memorandum of Law in Opposition and in Support
`
`Reply Affirmation and Exhibit
`
`'
`
`1
`
`2
`3
`
`4
`
`5
`
`There are two post—verdict motions before the Court
`
`in this
`
`action. As background,
`
`the Court previously held that Irvington
`
`Union Free School District
`
`(“Irvington”)1 entered into a contract
`
`with defendant The Landtek Group,
`
`Inc.
`
`(“Landtek”)
`
`for various
`
`improvements to its fields and facilities. Landtek entered into
`______'_——_
`
`1The Court dismissed Irvington from the action prior to trial.
`
`lof5
`1 of 5
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` FILED: WESTCHESTER COUNTY CLE “"3 "£3211?
`FILED: WESTCHESTER COUNTY CLERK 03/04/2019 04:18 PM
`
`NYSCEF DOC . NO .
`1 5 4
`ofright (REEEfiVEfl), MMEGSEIEQ to 989/20 4 / 2 0 1 9
`NYSCEF DOC. NO. 154
`RECEIVED NYSCEF: 03/04/2019
`copy ofthis order, with notice ofentry, upon all parties.
`
`Seq. Nos.#6-7_
`Dec _xk
`Disp __
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF WESTCHESTER
`
`Type _misc.7
`
`PRESENT: HON. LINDA S.
`
`JAMIESON
`
`
`
`Eizééézliafiéf 11:: ____________________ X
`Plaintiff,
`
`-against—
`
`-.
`INC. , ERICH GOLF, LLC,
`THE LANDTEK GROUP,
`IRVINGTON UNION FREE SCHOOL DISTRICT and
`HANOVER INSURANCE COMPANY,
`
`Defendants.
`
`______________________________________ X
`
`Index No. 62770/17
`
`DECISION AND ORDER
`
`The following papers numbered 1 to 5 were read on these
`motions:
`
`gape;
`
`'
`
`Number
`
`Notice of Motion, Affidavit and Exhibits
`
`.
`
`Notice of Cross—Motion, Affirmation and Exhibits
`Affidavit
`in Support
`‘
`
`Memorandum of Law in Opposition and in Support
`
`Reply Affirmation and Exhibit
`
`'
`
`1
`
`2
`3
`
`4
`
`5
`
`There are two post—verdict motions before the Court
`
`in this
`
`action. As background,
`
`the Court previously held that Irvington
`
`Union Free School District
`
`(“Irvington”)1 entered into a contract
`
`with defendant The Landtek Group,
`
`Inc.
`
`(“Landtek”)
`
`for various
`
`improvements to its fields and facilities. Landtek entered into
`______'_——_
`
`1The Court dismissed Irvington from the action prior to trial.
`
`lof5
`1 of 5
`
`
`
`
`INDEX NO. 62770/2017
`FILED: WESTCHESTER COUNTY CLERK 03/04/2019 04:18 PM
`FILED: WESTCHESTER COUNTY CLEE'
`
`
`
`
`
`
`NYSCEF DOC. NO. 154
`R<.C«.IV«.D NYSCEF: 03/04/2019
`NYSCEF DOC. NO. 154
`RECEIVED NYSCEF: 03/04/2019
`
`a subcontract with defendant Erich Golf, LLC (“Erich”). Erich
`
`then entered into a subvsubcontract with plaintiff. After trial,
`
`the jury found that Landtek owed plaintiff $519,369 for the East
`
`Field component of the project. This is the amount that
`
`plaintiff sought at trial.
`
`The parties agreed to submit
`
`the
`
`issue of interest to the Court.
`
`Landtek’s motion seeks to set aside the portion of the
`
`verdict that awarded plaintiff $519,369, contending that $260,869
`
`is the appropriate amount of damages. Plaintiff’s motion seeks
`
`to fix the date of pre—verdict interest at February 21, 2017, and
`
`setting pre—verdict, post—verdict, and postejudgment interest at
`
`one percent per month pursuant
`
`to General Municipal Law § 106—
`
`b(2) and General Business Law § 756vb(1)(b).
`
`“Under CPLR 4404(a), a trial court has the discretion to
`
`order a new trial ‘in the interest of justice’
`
`(CPLR 4404[a]).
`
`In considering whether to exercise its discretionary power to
`
`order a new trial based on errors at trial,
`
`the court must decide
`
`whether substantial justice has been done, whether it is likely
`
`that the verdict has been affected and must
`
`look to its own
`
`common sense, experienCe and sense of fairness rather than to
`
`precedents in arriving at a decision.” Lariviere v. New York
`
`City Transit Auth., 131 A.D.3d 1130, 1132, 17 N.Y.S.3d 153, 155
`
`(2d Dept. 2015).
`
`It is wellesettled that the standard for
`
`setting aside a jury verdict is “whether the evidence so
`
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` FILED. WESTCHESTER COUNTY R"CLE m
`INDEX NO. 62770/2017
`FILED: WESTCHESTER COUNTY CLERK 03/04/2019 04:18 PM
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`NYSC13F DOC. NO. 154
`C..«IV«D NYSCEF: 03/04/2019
`NYSCEF DOC. NO. 154
`RECEIVED NYSCEF: 03/04/2019
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`preponderates in favor of the movant that the verdict could not
`
`have been reached upon any fair interpretation of the evidence.
`
`involve a question of law, but
`Resolution of the motion does not
`rather requires a discretionary balancing of many factors.
`
`Moreover, great deference is accorded to the fact—finding
`
`function of the jury, and determinations regarding the
`
`credibility of witnesses are for the factfinders, who had the
`
`opportunity to see and hear the witnesses ” Vatalaro v. Cty. of
`
`Suffolk, 163 A,D.3d 891, 892, 81 N.Y.S.3d 444, 446 (2d Dept.
`
`2018).
`
`Landtek claims that the jury erred by making an “arithmetic
`
`inconsistency when compared to the weight of the evidence,” in
`
`that the jury failed to deduct $376,500 that it already paid, as
`
`well as the additional amounts of $28,000 to be paid to Erich and
`
`the $48,000 paid in settlement. However,
`
`the document
`
`to which
`
`Landtek cites in support of its position shows that the $376,500
`
`was paid to Erich, not plaintiff. Plaintiff’s expert testified
`
`that the appropriate amount of damages was $519,369.08, and
`
`explained exactly how he had arrived at this number. Plainly,
`
`the jury agreed that this number was correct, and rejected
`
`Landtek’s position.
`
`A review of these papers demonstrates that
`
`“there was a valid line of reasoning and permissible inferences
`
`from which the jury could reach the conclusion” that it did.
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` FILED. WESTCHESTER COUNTY CLERK ‘FMLSEV
`INDEX NO. 62770/2017
`FILED: WESTCHESTER COUNTY CLERK 03/04/2019 04:18 PM
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`NYSC.
`3F DOC. NO. 154
`C«I.V«D NYSC3F: 03/04/2019
`NYSCEF DOC. NO. 154
`RECEIVED NYSCEF: 03/04/2019
`
`Gore v. Cardany, 2018 WL 6627037, at *2
`
`(2d Dept. Dec. 19, 2018).
`
`Accordingly,
`
`the Court denies Landtek’s motion in its entirety.
`
`As for plaintiff’s motion,
`
`the Court begins by observing
`
`that Landtek does not appear to oppose plaintiff’s request that
`
`the Court find that the applicable date on which interest begins
`
`to accrue is February 21, 2017,
`
`the date that plaintiff asserts
`
`is the date of breach.
`
`The Court
`
`thus grants this aspect of the
`
`motion. With respect to plaintiff's contention that the Court
`
`should ignore CPLR § 5004, which provides for 9% interest per
`
`annum, and instead apply General Municipal Law § 106—b(2) and
`
`General Business Law § 756—b(1)(b),
`
`for an interest rate of 1%
`
`per month,
`
`the Court notes that plaintiff cites no caselaw for
`
`this proposition. Research has not revealed any cases that would
`
`require the Court
`
`to apply any other interest rate other than the
`
`standard 9%.
`
`The Court thus denies this aspect of the motion.
`
`Plaintiff shall submit a proposed Judgment
`
`to the Judgment
`
`Clerk, on notice,
`
`in the amount of $519,369.08, plus interest at
`
`the rate of 9%,
`
`from February 21, 2017.
`
`The foregoing constitutes the decision and order of the
`
`Court.
`
`Dated:
`
`White Plains, New York
`‘fWgfi’lzow
`
`
`m
`JAMIESON
`ON. LIND
`.
`Justice of the Supreme Court
`
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`INDEX NO. 62770/2017
`FILED: WESTCHESTER COUNTY CLERK 03/04/2019 04:18 PM
`FILED: WESTCHESTER COUNTY CLE' “’5"-
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`NYSCEF DOC. NO. 154
`R<.C«.IV«.D NYSCEF: 03/04/2019
`NYSCEF DOC. NO. 154
`RECEIVED NYSCEF: 03/04/2019
`
`To: Bleakley Platt et al,
`Attorneys for Plaintiff
`l N. Lexington Ave.
`White Plains, NY 10602
`
`Welby, Brady et al.
`Attorneys for Landtek
`11 Martine Ave., 15th Fl.
`White Plains, NY 10606
`
`5 of 5
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