Gilbride v. American Transit Insurance

Appellate Division of the Supreme Court of New York

Gilbride v. American Transit Insurance

211 A.D.2d 491, 621 N.Y.S.2d 552, 1995 N.Y. App. Div. LEXIS 358

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

DecidedJanuary 17, 1995

StatusPublished

This text of 211 A.D.2d 491 (Gilbride v. American Transit Insurance) 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

Gilbride v. American Transit Insurance, 211 A.D.2d 491, 621 N.Y.S.2d 552, 1995 N.Y. App. Div. LEXIS 358 (N.Y. Ct. App. 1995).

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Opinion

Judgment, Supreme Court, New York County (Angela Mazzarelli, J.), entered August 27, 1993, which, upon a jury verdict, awarded plaintiff the sum of $191,800 plus interest from the date of the verdict, unanimously affirmed, with costs payable to plaintiff.

The verdict was neither excessive nor against the weight of the evidence. The evidence submitted was sufficient to permit a charge to the jury that attorneys’ fees incurred by plaintiff as a result of defendant’s breach of the insurance contract were recoverable. Moreover, a missing witness charge with respect to the attorneys who performed services on behalf of plaintiff was not warranted. The court’s inadvertent failure to charge that a defendant in Civil Court has 20 days to answer a complaint has not been preserved for review since defense counsel failed to object to the charge on this ground (Bellefeuille v City & County Sav. Bank, 40 NY2d 879, 880). Defendant’s additional contention that the court erred in failing to specifically exclude certain claims for damages in its charge is both unpreserved and without merit since the parties agreed to a general verdict, thus precluding this Court from ascertaining whether or not it contained any improper damage . claims (see, Hunt v Bankers & Shippers Ins. Co., 50 NY2d 938; Cohen v City of New York, 171 AD2d 721).

Since the jury rendered a general verdict without specifying [492]*492the date from which interest was to be computed, the court properly determined such date (CPLR 5001 [c]). Finally, the court properly refused to allow plaintiff to prove punitive damages (see, Rocanova v Equitable Life Assur. Socy., 83 NY2d 603).

We have considered the other contentions raised and find them to be without merit. Concur—Ellerin, J. P., Kupferman, Asch and Rubin, JJ.

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Judgment, Supreme Court, New York County (Angela Mazzarelli, J.), entered August 27, 1993, which, upon a jury verdict, awarded plaintiff the sum of $191,800 plus interest from the date of the verdict, unanimously affirmed, with costs payable to plaintiff.

The verdict was neither excessive nor against the weight of the evidence. The evidence submitted was sufficient to permit a charge to the jury that attorneys’ fees incurred by plaintiff as a result of defendant’s breach of the insurance contract were recoverable. Moreover, a missing witness charge with respect to the attorneys who performed services on behalf of plaintiff was not warranted. The court’s inadvertent failure to charge that a defendant in Civil Court has 20 days to answer a complaint has not been preserved for review since defense counsel failed to object to the charge on this ground (Bellefeuille v City & County Sav. Bank, 40 NY2d 879, 880). Defendant’s additional contention that the court erred in failing to specifically exclude certain claims for damages in its charge is both unpreserved and without merit since the parties agreed to a general verdict, thus precluding this Court from ascertaining whether or not it contained any improper damage . claims (see, Hunt v Bankers & Shippers Ins. Co., 50 NY2d 938; Cohen v City of New York, 171 AD2d 721).

Since the jury rendered a general verdict without specifying [492]*492the date from which interest was to be computed, the court properly determined such date (CPLR 5001 [c]). Finally, the court properly refused to allow plaintiff to prove punitive damages (see, Rocanova v Equitable Life Assur. Socy., 83 NY2d 603).

We have considered the other contentions raised and find them to be without merit. Concur—Ellerin, J. P., Kupferman, Asch and Rubin, JJ.

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Bluebook (online)

211 A.D.2d 491, 621 N.Y.S.2d 552, 1995 N.Y. App. Div. LEXIS 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbride-v-american-transit-insurance-nyappdiv-1995.

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