129 A.D.2d 944 | N.Y. App. Div. | 1987
Cross appeals (1) from an order of the Supreme Court (White, J.), entered July 10, 1986 in Montgomery County, which, inter alia, denied defendant’s motion that the apportionment of liability applied against plaintiff Arthur E. Servidori be extended to the verdicts awarded to plaintiffs Transit Casualty Company and Jerry J. Kobs, Inc., and which denied plaintiffs’ cross motion that defendant be directed to pay certain witness fees, and (2) from an order of said court, entered August 13, 1986 in Montgomery County, which granted defendant’s motion to delete from the judgment entered by plaintiff Servidori a provision awarding him interest from the date óf the jury verdict.
This matter has its genesis in an October 1981 accident involving a vehicle owned and operated by defendant and a tractor trailer operated by plaintiff Arthur E. Servidori. Besides personal injury to Servidori, the accident resulted in damage to the tractor owned by Servidori and insured by plaintiff Transit Casualty Company (Transit Casualty) and the trailer and its contents owned by plaintiff Jerry J. Kobs, Inc. (Kobs). All three commenced actions against defendant and the actions were consolidated. Following a jury trial, a verdict was rendered in favor of Servidori with liability apportioned 20% against Servidori and 80% against defendant. Transit Casualty was awarded the full amount it claimed for repair of Servidori’s tractor and Kobs recovered the full amount it claimed for damage to the trailer and its contents. Thereafter, defendant moved to set aside the verdict as to Servidori and the motion was granted; Servidori stipulated to a reduction of the verdict with respect to damages.
Plaintiffs contend that the trial court erred in denying their motion for an order requiring defendant to pay the expenses of certain witnesses who testified because defendant refused to respond to several of plaintiffs’ notices to admit. The notices required defendant to admit, inter alia, that the amount of damage to Servidori’s tractor was $12,699.84, that Transit Casualty paid $12,199.84 for repairs to the tractor, and that the amounts that Kobs claimed were due for damages to the trailer and its contents were fair and reasonable. Defendant refused to admit these claims, and plaintiffs contend that this refusal was unreasonable. We disagree. The purpose of a notice to admit "is to eliminate from contention factual matters which are easily provable and about which there can be no controversy” (Berg v Flower Fifth Ave. Hosp., 102 AD2d 760), and it may not be utilized to request admission of material issues or ultimate or conclusory facts (Taylor v Blair,
Finally, Servidori asserts that he is entitled to receive interest from the date of the jury’s verdict rather than the date that the trial court ruled on defendant’s motion to set aside the verdict, since it was defendant’s action of making that motion that engendered the five-month delay between verdict and judgment. We find this claim to be without merit. When a party moves pursuant to CPLR 4404 to set aside the jury’s verdict and the motion is granted, interest should be measured from the date on which the motion is determined rather than the date on which the original verdict was rendered (see, 5 Weinstein-Korn-Miller, NY Civ Prac fl 5002.03). This is precisely the situation here: defendant moved to set aside the verdict in favor of Servidori and the motion was granted, the trial court stating that it would order a new trial unless Servidori stipulated to a reduction in damages. Certainly it would work a grave injustice to defendant if he was to be effectively penalized for having made a successful motion. Under these circumstances, the trial court did not err in granting defendant’s motion to delete from Servidori’s judgment that portion awarding interest from the date of the jury verdict.
Order entered July 10, 1986 modified, on the law, without costs, by reversing so much thereof as denied defendant’s motion to have the jury’s apportionment of liability as to plaintiff Arthur E. Servidori applied to the property damage verdict rendered in favor of plaintiff Transit Casualty Company; said motion granted; and, as so modified, affirmed.
Order entered August 13, 1986 affirmed, without costs. Weiss, J. P., Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
Such an apportionment is, of course, inapplicable to Kobs. Kobs is an absentee owner, not a subrogee, and Servidori’s negligence may not be imputed to it (see, Holt v Nesbit, 110 AD2d 1039).