`NYSCEF DOC. NO. 392
`RECEIVED NYSCEF: 05/23/2018
`
`INDEX NO. 69292/2014
`
`SUPREME COURT: STA TEOI' NEW YORK
`lAS PART WESTCHESTER COUNTY
`J.S.c.
`PRESENT: HON. JOAN B. LEFKOWITZ,
`---------------------------------------------------------------------)(
`TERENCE O'CONNELL,
`
`To commence the statutory time period for
`appeals as of right (CPLR 55 13[a]), you are
`advised to serve a copy of this order, with
`notice of entry, upon all parties.
`
`Plaintiff,
`
`-against-
`
`JORAM.r. ARIS,
`
`Dcfcndant.
`---------------------------------------------------------------------)(
`
`DECISION & ORDER
`
`Index No: 69292/2014
`
`Motion Return Date:
`November 17,2017
`Motion Seq. #13 & #14
`
`The following papers (e-filed documents 308-321; 327-352) wcre rcad on (I) thc motion
`by plaintiff for an order increasing damages after trial, an order awarding attorneys fees, and an
`ordcr directing discovery on the issue of punitive damages; and (2) the cross-motion by
`defendant for an order setting aside the verdict upon the grounds the verdict
`is contrary to the
`weight of evidence (CPLR 4404[ aD.
`
`Order to Show Cause, Affidavit, Affirmations (Exhibits A-J)
`Affirmation in Opposition
`Notice of Cross-Motion, Affirmation
`Affirmation (Exhibits A-H) (Plaintiff)
`Affidavit (Exhibits A-K) (Plaintiff)
`
`Upon reading the foregoing papers it is
`
`ORDERED the motion is dcnied; and it is furthcr
`
`ORDERED thc cross-motion is denied.
`
`improperly reprcsented him in an underlying partition
`Plaintiff sues claiming defendant
`action. The complaint sets forth seven causes of action including breach of contract,
`legal
`malpractice and a violation of Judiciary Law 487.
`
`Defendant defaulted in appearing. Plaintiff moved for a default judgment and defendant
`opposed. Thc court (Bellantoni, 1.) granted the motion to the extent of granting a default
`judgment on the causes of action for breach of contract and legal malpractice, and, in effect,
`dismissed the remaining causes of action, including the cause of action alleging a violation of
`Judiciary Law 487.
`
`A trial on damages was held before Judge Bellantoni. Following the completion ofthc
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`FILED: WESTCHESTER COUNTY CLERK 05/23/2018 02:31 PM
`NYSCEF DOC. NO. 392
`RECEIVED NYSCEF: 05/23/2018
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`INDEX NO. 69292/2014
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`presentation of evidence plaintiff made a motion seeking to conform the pleadings to the proof
`by submitting the issue of whether defendant violated Judiciary Law 487 to the jury.
`Judge
`Bellantoni granted the motion. The next day plaintiff orally moved to include as damagcs in the
`Judiciary Law 487 cause of action the legal fees plaintiff incurred in prosecuting the present
`action and the legal fees plaintiff incurred in defending a Bronx County action brought by
`defendant.' Although it is not clear from the motion record it appears Judge Bellantoni
`ruled the
`limit of fees that could be included as damages for the Judiciary Law 487 causc of action could
`not exceed $100,000.00.
`Judge Bellantoni also ruled that, because the jury did not hear evidence
`concerning the legal fees incurred in either the present action or the Bronx County action, the
`issue of the legal fees incurred by plaintiff in those actions would not be presented to the jury.
`However, Judge Bellantoni
`ruled a post-judgment motion for an award of attorneys fees would
`be permitted.'
`
`the jury returned a verdict awarding $129,000.00 in damages on the
`On June 16,2017,
`legal malpractice claim and $100,000.00 on the Judiciary Law 487 claim. On January 22, 2018,
`plaintiff entered judgment against the defendant
`in the sum of $528,539.75 ($129,000.00 plus
`$300,000.00 [$100,000.00 trebled pursuant to Judiciary Law 487] plus $99,539.75 in interest).
`
`Plaintiff s Motion
`
`Increase Jury Verdict
`
`The court cannot increase the jury verdict since the jury did not hear sufficient evidence
`concerning legal fees incurred in either the present action or the Bronx County action. Moreover,
`a review of the transcript of proceeding on June 15, 2017, indicates that Judge Bellantoni
`authorized only a post-judgment motion for an award of attorneys fees incurred in the
`prosecution of the present action.
`
`Award of Attorneys Fees
`
`It appears from a review of the reckoning of legal fees attached as Exhibit 0 to the
`present motion some fees awarded as damages by the jury on the Judiciary Law 487 cause of
`action included fees for the prosecution of the present action. To the extent that plaintiff is
`. moving for an award of attorneys fees in addition to those awarded by the jury on the Judiciary
`Law 487 cause of action (which were then trebled), the motion is denied in the discretion of the
`court.
`
`, The Bronx County action, in which defendant sought legal fees from plaintiff for the
`partition action, was dismissed upon grounds that defendant did not properly serve plaintiff.
`
`2 Judge Bellantoni
`
`retired shortly after the trial of this matter.
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`FILED: WESTCHESTER COUNTY CLERK 05/23/2018 02:31 PM
`NYSCEF DOC. NO. 392
`RECEIVED NYSCEF: 05/23/2018
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`INDEX NO. 69292/2014
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`Punitive Damages
`
`In its verdict shect the jury was asked whether plaintiff was entitled to punitive damages,
`but the jury was not asked to determine the amount of those damages,
`if awarded. The jury
`determined that plaintiff was entitled to punitive damages but, since it was not asked, the jury did
`not determine the amount of punitive damages. The jury was dismissed without being presented
`with the question of the amount of punitive damages to award. Plaintiff has not advised the court
`whether, and if so, under what circumstances, Judge Bellantoni ordered a bifurcated trial on the
`issue of punitive damages. Moreover,
`the jury which heard the case in chief is no longer
`available to hear a trial ofthe amount of punitive damages to award. Accordingly,
`the branch of
`the motion seeking an order directing discovery on the issue of punitive damages is denied.
`
`Defendant's Cross-Motion
`
`Defendant cross-moves for an order setting aside the verdict as contrary to the weight of
`the evidence.
`
`is contrary to the weight of the evidence when the evidence so
`"A jury verdict
`preponderates in favor of the movant
`that the verdict could not have been reachcd on any fair
`interpretation of the evidence. Whether a jury verdict should be set aside as contrary to the
`weight of the evidence does not involve a question of law, but rather requires a discretionary
`balancing of many factors. We accord deference to the credibility determinations of the
`factfinders, who had the opportunity to see and hear the witnesses" (Peterson v. MFA, 155
`A.D.3d 795, 798, 64 N.Y.S.3d 266, 269 [2d Dept 2017] [internal quotation marks and citations
`omitted]).
`
`Applying those principles here, the court finds the jury's verdict
`interpretation of the evidence.
`
`is supported by a fair
`
`EN T ER,
`
`Dated: White Plains, New York
`May 23, 2018
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