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[97 NY Int. 0207]
Decided December 2, 1997.
PER CURIAM:
This motion for leave to appeal by defendant City of New York presents
a recurring finality issue regarding a particular type of conditional order.
Specifically involved is the finality
of an Appellate Division order reversing a judgment and directing a
new trial unless a party stipulates to a different damagesaward. The fundamental
finality problem with such an order is that it is not self executing. It
cannot be given effect immediately, but rather contemplates further action
by a party, and possibly by a court, before the result of the appeal taken
to
the Appellate Division is known.
Plaintiff Gary Whitfield brought this negligence action against defendant
City of New York for injuries sustained in a fire in a building owned by
defendant City. After a trial, the
jury awarded plaintiff a total of $10,351,000. Upon defendant's oral
post verdict motion, Supreme Court reduced the award to the principal sum
of $7,402,000 and judgment was entered. Defendant appealed from the judgment.
The Appellate Division reversed the judgment, on the facts and as an
exercise of discretion, and granted a new trial on the issue of damages,
unless within 20 days after service upon
plaintiff of a copy of the Appellate Division order with notice of
entry, plaintiff stipulated to reduce the award for past pain and suffering
from the principal sum of $4,000,000 to $3,000,000 and to reduce the award
for future pain and suffering from the principal sum of $2,000,000 to $1,000,000,
"and to the entry of an amended judgment accordingly." The order further
provided that "[i]n the event that the plaintiff so stipulates, then the
judgment, as so reduced and amended, is affirmed."On May 28, 1997, plaintiff
stipulated to a reduction in
damages and to the entry of an amended judgment. Defendant nowseeks
leave to appeal from the Appellate Division order. An amended judgment
has not yet been entered or apparently even rendered.
Appellate Division conditional orders reversing a judgment and directing
a new trial unless a party stipulates to a different amount of damages
have generally taken three forms. At
times, the Appellate Division has reversed and ordered a new trial
unless a party simply stipulates to a reduced or enhanced damages award.
In other instances, the Appellate Division has required not only that the
party must stipulate, but also that an amended judgment be entered on the
stipulation. Finally, the Appellate Division has also issued orders, such
as the present one, where the order itself provides that the amended judgment
entered on the stipulation is then deemed affirmed.In analyzing which paper
is the final appealable paper for
purposes of taking an appeal pursuant to CPLR 5601 or making a motion
for leave to appeal pursuant to CPLR 5602,
It is important to emphasize that the party who stipulates to the reduction or enhancement of the damages award cannot appeal or seek leave to appeal inasmuch as that party is not
aggrieved ( see, e.g., Plotkin v New York City Health & Hosps. Corp., lv dismissed 88 NY2d 917, rearg denied 88 NY2d 1065 [holding defendant who stipulated to increase in damages waived right to contest all issues determined by the Appellate Division order sought to be appealed from]; Sharrow v Dick Corp., appeal dismissed in part 84 NY2d 976, 977 [holding nonaggrieved a defendant who stipulated to an increase in damages to avoid new trial and sought to appeal liability issue]; Sogg v American Airlines, lv dismissed 83 NY2d 846 [holding plaintiff who stipulated to reduction in damages not a party aggrieved]; Gilroy v American Broadcasting Co., lv dismissed 43 NY2d 825 [holding nonaggrieved plaintiff who sought leave to appeal punitivedamages claim after stipulating to reduction in compensatory damages]). Only the non stipulating party may appeal or move for leave to appeal.
strict attention should be paid to the express language of the Appellate
Division order. Thus, if the order provides only for the execution of a
stipulation, the stipulation is the final paper.
If the Appellate Division order dictates a stipulation followed by
an amended judgment, the judgment is the final paper. Where the Appellate
Division order directs the entry of an amended judgment and specifies that,
in that event, the amended judgment is affirmed, the Appellate Division
order will be viewed as the final paper once the amended judgment is entered.
In this latter instance, this Court is acknowledging that the Appellate
Division is expressly holding the appeal in abeyance pending execution
of an amended judgment and then affirming that judgment. To the extent
that previous determinations of this Court may indicate to the contrary,
they are no longer to be followed.
The specific language of the Appellate Division order also has significant
timeliness consequences. Where the Appellate Division order provides only
for the execution of a stipulation,
that stipulation shall effectively be treated by this Court for timeliness
concerns as a final judgment, and the appeal or motion for leave to appeal
must be made to this Court within 30 days (or 35 if served by mail) of
the time the appellant or movant is served with the stipulation with written
notice of entry. In this limited instance, entry of a judgment upon the
stipulationand the taking of an appeal or the making of a motion from such
judgment may have fatal consequences. In contrast, where the judgment of
Supreme Court is the final paper, a party must appeal or move for leave
to appeal within 30 days (or 35 if served by mail) of service upon the
appellant or movant of that judgment with written notice of entry. And,
it necessarily follows that if the Appellate Division order is the final
paper, computation of the time to appeal or move for leave to appeal will
commence upon service of the Appellate Division order with written notice
of its entry, provided that such service is made after the judgment has
been entered.
Applying the foregoing analysis to the present case, the motion for
leave to appeal must be dismissed for nonfinality. In this action, the
Appellate Division order expressly states that,
in the event the plaintiff stipulates to a reduction in damages and
entry of a judgment reflecting that stipulation, the amended judgment entered
on the stipulation is affirmed. While a
stipulation has been entered into, an amended judgment has not yet
been entered and, thus, could not yet have been affirmed by the Appellate
Division. At present no final paper exists in this action.
Accordingly, the motion for leave to appeal should be dismissed, without
costs, upon the ground that the order of the Appellate Division sought
to be appealed from does not finally
determine the action within the meaning of the Constitution.
* * * * * * * * * * * * * * * * *
Motion for leave to appeal dismissed, without costs. Opinion Per Curiam.
Decided December 2, 1997.