Civil Court of the City of New York, Bronx County, August 9, 2021

Thynn Thazin, defendant pro se.

Orlando Brewster, plaintiff pro se.

In this action for, inter alia, breach of contract, pro se defendant moves seeking an order renewing^[FN1] and/or rearguing the court's (Miles, J.) decision and order dated March 6, 2020, issued after a bench trial. Saliently, defendant avers that this action was previously dismissed and she had no idea that it had been restored for trial. Pro se plaintiff orally opposes the instant motion.

For the reasons that follow hereinafter, defendant's motion is denied.

According to the endorsed complaint, the instant action is for breach of a loan agreement. It is alleged that on January 1, 2006, plaintiff loaned defendant $7,000, that defendant agreed to repay the foregoing sum over time, and that defendant failed to repay the loan.

The instant action has a protracted procedural history. Significantly, on October 6, 2015, the court (Saunders, J.) dismissed^[FN2] this action on grounds that it was barred by the doctrine of res judicata. Specifically, the court noted that on October 5, 2015, the court (Miles, J.), after a trial, [*2]rendered a decision in plaintiff's favor. Thereafter, per the court's{**73 Misc 3d at 372} electronic file, the court (Miles, J.) restored this case for trial.^[FN3] On December 22, 2016, the parties tried this action before the court (Miles, J.), who issued a decision on March 6, 2020, rendering a verdict in favor of plaintiff in the sum of $5,486.55. On September 21, 2020, defendant filed the instant motion by order to show cause, and served the same on September 23, 2020, which this court, in an order dated October 20, 2020, referred to Justice Miles. Subsequently, Justice Miles retired and this motion was reassigned to this court.

Defendant's motion, treated as one pursuant to CPLR 4404 (b) to set aside the court's (Miles, J.) decision and order after trial and the judgment in plaintiff's favor, is denied. Significantly, the instant motion, made months after the court issued the decision and order after trial, is timely. However, the court's prior order dismissing this action on grounds of res judicata was, in fact, vacated prior to trial. As such, there is no merit to defendant's contention that the court's decision and order after trial should be vacated on the foregoing basis. Moreover, defendant's motion is denied for the additional reason that she fails to proffer a compelling and cognizable legal reason to upset the court's verdict.

CPLR 4404 prescribes the procedure to assail a determination by a judge or jury after trial. With regard to a decision by a judge after a trial at which the judge was the finder of fact, CPLR 4404 (b) states that

"[a]fter a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue."

Thus, after a bench trial, any party may move to have the court set aside its decision, its judgment, or both.

Procedurally, pursuant to CPLR 4405, such motion must be made "before the judge who presided at the trial within fifteen days after decision, verdict or discharge of the jury." It is well settled that an untimely motion pursuant to CPLR 4404 must{**73 Misc 3d at 373} be denied (Trimarco v Data Treasury Corp., 146 AD3d 1008, 1009 [2d Dept 2017]; Oppedisano v Arnold, 191 AD3d 794, 794 [2d Dept 2021]). Moreover, whether to grant such a motion is entirely a matter of the trial court's discretion (Shelmerdine v Myers, 143 AD3d 1200, 1202 [3d Dept 2016]; Wong v 2669 Owners Ltd., 126 AD3d 451, 451 [1st Dept 2015]; Matter of Ramsey H. [Benjamin K.], 99 AD3d 1040, 1043 [3d Dept 2012]). Indeed, a motion to set aside a verdict is not an opportunity to grant the losing party an opportunity to supplement its evidence at trial unless "there is a claim that such evidence is newly discovered or was previously inaccessible" (Oppedisano at 796; Gagliardi v State of New York, 148 AD3d 868, 870 [2d Dept 2017]). In Shelmerdine, for example, the court denied defendant's motion to set aside its verdict when the expert testimony sought to be provided was not proffered at trial and defendant failed to proffer an explanation for failing to do so (id. at 1202).

Substantively, "[i]n the case of a nonjury trial, a motion pursuant to CPLR 4404 is subject to the same standard of review as findings in a nonjury trial generally" (Trimarco at 1009). To that end, it is well settled that a jury verdict shall not be set aside and shall stand unless and until the court concludes that the jury could not have reached the verdict on any fair interpretation of the evidence proffered at trial (Delgado v Board of Educ. of Union Free School Dist. No. 1 of Towns of Greenburgh & Mount Pleasant, 48 NY2d 643, 644 [1979]). Stated differently, a jury verdict should not be set aside unless the court concludes that the evidence presented at trial so preponderates in favor of the moving party that the jury could not have reached its verdict on any fair interpretation of the evidence (Grassi v Ulrich, 87 NY2d 954, 956 [1996]).

Preliminarily and procedurally, here, insofar as Justice Miles retired before issuing an order on this motion, this court has the jurisdiction to hear and determine it (cf. Cappuccio v Cappuccio, 214 AD2d 696, 697 [2d Dept 1995] [Court held that Justice who heard a motion seeking to affect a prior judgment had jurisdiction to hear and decide the motion where the defendant failed to establish that the hearing officer who presided over the prior hearing had retired]).

With respect to the timeliness of the instant motion, in light of the COVID-19 pandemic, the motion is timely. To be sure, the record indicates that the court issued its decision and order after trial on March 6, 2020. Defendant then made this motion, by order to show cause, seeking to vacate the court's judgment{**73 Misc 3d at 374} on September 23, 2020.^[FN4] To be timely, defendant's application must have been made no later than March 21, 2020 (15 days after March 6, 2020), but was instead made approximately six months after the issuance of the court's decision and order on September 23, 2020. As noted above, pursuant to CPLR 4405, a motion pursuant to CPLR 4404 (b) must be made "before the judge who presided at the trial within fifteen days after decision, verdict or discharge of the jury," and the failure to do so mandates denial of a belated motion (Trimarco at 1009; Oppedisano at 794). Thus, defendant's motion would have been untimely, but for the COVID-19 pandemic and the executive orders issued by Governor Cuomo.

To be sure, in response to the COVID-19 pandemic and its deleterious effect on the country, and indeed the court system, Governor Cuomo issued several executive orders, including Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), which became effective on March 20, 2020, and states, in relevant part, that

"[i]n accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020."

Thus, Executive Order 202.8 tolled the 15-day period within which to make the instant motion prescribed by CPLR 4405 from March 20, 2020, through April 19, 2020. Indeed, pursuant to a series of additional executive orders issued by the{**73 Misc 3d at 375} Governor, the tolling of time periods prescribed by Executive Order 202.8 was extended through November 3, 2020 (Executive Order [A. Cuomo] No. 202.67 [9 NYCRR 8.202.67] ["The suspension in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby continued, as modified by prior executive orders, provided however, for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled"]).

Here, the toll prescribed by Executive Order 202.8 served to toll the 15-day period prescribed by CPLR 4405 as of March 20, 2020, through November 3, 2020. Thus, when the instant motion was made on September 23, 2020, which would have been untimely but for the foregoing executive orders, the toll prescribed thereunder had tolled the 15-day period under CPLR 4405 on March 20, 2020, through November 3, 2020—14 days after Judge Miles' decision—making the instant motion timely.

Notwithstanding the foregoing, defendant's motion is nevertheless denied because she fails to proffer a compelling and cognizable legal reason to upset the court's verdict. To be sure, the salient reason offered by defendant is that this case proceeded to trial despite the court's order dated October 6, 2015, which dismissed this action. However, as established by the court's electronic file, on December 21, 2016, the court restored this case for trial and did so in response [*4]to plaintiff's application to reargue the prior order which dismissed the action. It is therefore clear that the order of dismissal was vacated and was no impediment to the ensuing trial.

To the extent that during oral argument defendant sought to re-litigate the trial and the facts presented therein, the law precludes such course of action and is no basis to vacate the court's decision and order after trial. As noted above, a motion to set aside a verdict is not an opportunity to grant the losing party an opportunity to supplement its evidence at trial unless "there is a claim that such evidence is newly discovered or was{**73 Misc 3d at 376} previously inaccessible" (Oppedisano at 796; Gagliardi at 870). Here, nothing sought to be presented to the court by defendant (indeed, defendant offers no new evidence in her papers) is newly discovered and no such assertion is made. It is hereby ordered that all stays be lifted.