Maracina v. Schirrmeister

152 A.D.2d 502, 544 N.Y.S.2d 13, 1989 N.Y. App. Div. LEXIS 10453

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 27, 1989
• Status: Published

Opinion

Order, Supreme Court, New York County (Carol E. Huff, J.), entered May 4, 1989, which dismissed the complaint, after a jury was sworn to make an assessment of damages, but before any evidence was taken, unanimously reversed, on the law, the complaint reinstated, the order of this court dated November 29, 1984, granting partial summary judgment in favor of plaintiff on the issue of liability, reinstated, and the matter remanded again for an assessment of damages, before a different Justice, with costs.

By memorandum decision and order dated November 29, 1984, this court granted plaintiff partial summary judgment on the issue of liability and ordered an assessment of damages in Supreme Court (105 AD2d 672). Jury selection was completed on April 25, 1989, and the case was assigned for trial to Justice Carol E. Huff. On May 1, 1989, before there had been any opening statements, or other proceedings before the jury, the court orally granted a motion to dismiss the complaint. Three days later, on May 4, 1989, the court entered a written order, reading as follows: "Upon the Court’s own motion after trial, settle order/judgment [sic]”. As noted, no trial had ever taken place.

The respondent cites no authority, and indeed, none exists, to support the Trial Judge’s disregard of the earlier order of this court. Trial courts are without authority to vacate or modify orders of the Appellate Division, or to reverse holdings of this court. Concur — Murphy, P. J., Ross, Asch, Rosenberger and Wallach, JJ.