Chang v. Botsacos

Appellate Division of the Supreme Court of New York

Chang v. Botsacos

92 A.D.3d 610, 939 N.Y.2d 377

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 28, 2012

StatusPublished

Cited by5 cases

This text of 92 A.D.3d 610 (Chang v. Botsacos) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chang v. Botsacos, 92 A.D.3d 610, 939 N.Y.2d 377 (N.Y. Ct. App. 2012).

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Opinion

Defendant failed to preserve her arguments that entry of the judgment was untimely pursuant to 22 NYCRR 202.48 (a) (see McCue v McCue, 225 AD2d 975, 976 [1996]), and that plaintiff abandoned the action pursuant to 22 NYCRR 202.48 (b) (see Meldrim v Hill, 260 AD2d 836, 839 [1999]). Were we to reach these arguments, we would find that the 60-day time limit in 22 NYCRR 202.48 (a) “applies only where the court explicitly directs that the proposed judgment or order be settled or submitted for signature” (Funk v Barry, 89 NY2d 364, 365 [1996]). Here, there was no such explicit direction (see Meldrim at 839; McCue at 976-977).

Defendant Thomas Cartelli was deposed before trial but had died by the time of trial. Contrary to defendant’s contention, plaintiffs reading of Cartelli’s deposition testimony at the trial did not violate the Dead Man’s Statute (CPLR 4519; see Tepper v Tannenbaum, 87 Misc 2d 829, 838 [1976], revd on other grounds 65 AD2d 359 [1978]; CPLR 3117 [a] [3] [i]). Concur— Mazzarelli, J.P., Andrias, Catterson, Abdus-Salaam and Manzanet-Daniels, JJ.

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Defendant failed to preserve her arguments that entry of the judgment was untimely pursuant to 22 NYCRR 202.48 (a) (see McCue v McCue, 225 AD2d 975, 976 [1996]), and that plaintiff abandoned the action pursuant to 22 NYCRR 202.48 (b) (see Meldrim v Hill, 260 AD2d 836, 839 [1999]). Were we to reach these arguments, we would find that the 60-day time limit in 22 NYCRR 202.48 (a) “applies only where the court explicitly directs that the proposed judgment or order be settled or submitted for signature” (Funk v Barry, 89 NY2d 364, 365 [1996]). Here, there was no such explicit direction (see Meldrim at 839; McCue at 976-977).

Defendant Thomas Cartelli was deposed before trial but had died by the time of trial. Contrary to defendant’s contention, plaintiffs reading of Cartelli’s deposition testimony at the trial did not violate the Dead Man’s Statute (CPLR 4519; see Tepper v Tannenbaum, 87 Misc 2d 829, 838 [1976], revd on other grounds 65 AD2d 359 [1978]; CPLR 3117 [a] [3] [i]). Concur— Mazzarelli, J.P., Andrias, Catterson, Abdus-Salaam and Manzanet-Daniels, JJ.

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92 A.D.3d 610, 939 N.Y.2d 377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chang-v-botsacos-nyappdiv-2012.

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