| Pelletteri v Igor & Alex Taxi, Inc. |
| 2005 NYSlipOp 50448(U) |
| Decided on March 31, 2005 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal by plaintiff from an order of the Civil Court, Kings County (D. Silber, J.), dated December 9, 2003, denying plaintiff's motion to vacate the judgment in favor of defendant, entered pursuant to an order granting defendant's CPLR 4401 motion to dismiss the complaint at the conclusion of plaintiff's case.
Order unanimously reversed without costs, plaintiff's motion to vacate the judgment granted and matter remitted to the court below for a new trial with regard to liability.
Plaintiff brought this action to recover for injuries sustained in a motor vehicle accident. In the liability portion of the bifurcated trial, the court below dismissed the action at the conclusion of plaintiff's presentation of her case in chief upon defendant moving for judgment pursuant to CPLR 4401. The court found that plaintiff failed to make out a prima facie case with regard to properly identifying the yellow cab which struck her car.
On a post-trial motion to vacate the judgment pursuant, inter alia, to CPLR 5015 (a) (3) for fraud, misrepresentation, or other misconduct of an adverse party, plaintiff's counsel for the first time alleged that the defendant corporation had admitted pursuant to CPLR 3123 in its response to a notice to admit that its yellow cab driven by defendant Jebran Nasri had come into contact with plaintiff's car at the time of the accident.
Upon review of the record, we find that the court below improvidently exercised its discretion in denying plaintiff's motion to vacate the judgment. Both sides made it clear in their [*2]motion papers that the defendant corporation had admitted the foregoing. The conduct of defense counsel in moving to dismiss based on plaintiff's failure to establish the identity of the other vehicle involved in the accident and its driver when the corporate defendant formally admitted such involvement, and counsel's further statement to the court upon making its motion for a directed verdict that defendants'
involvement was denied in its answer, constitutes grounds for vacatur (CPLR 5015 [a] [3]; 3123; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3123:1; see also Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]).
Decision Date: March 31, 2005