Wong v. 2669 Owners Ltd.

126 A.D.3d 451, 2 N.Y.S.3d 356

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 2015
• Docket: 14442 104404/09 590758/09
• Status: Published

Opinion

Order, Supreme Court, New York County (Carol Edmead, J.), entered June 11, 2013, which granted defendant/third-party plaintiffs CPLR 4404 (b) posttrial motion to the extent of vacating an order and judgment (one paper), same court and Justice, entered March 14, 2013, ordering a new trial, and directing the reassignment of the matter to a different IAS Part, unanimously affirmed, without costs.

The motion court properly exercised its discretion in setting aside the order and judgment (see CPLR 4404 [b]; see also Stinton v Robin’s Wood, Inc., 45 AD3d 203, 207 [2d Dept 2007], lv denied 10 NY3d 708 [2008]). The court’s evaluation of the parties’ credibility was based on a mischaracterization of their testimony at trial, and therefore its decision to order a new trial will not be disturbed (see Saperstein v Lewenberg, 11 AD3d 289 [1st Dept 2004] [judgment rendered after a bench trial may be disturbed if the court’s conclusions, including its cred ibility determinations, cannot be supported by any fair interpretation of the evidence]).

To the extent plaintiff challenges Justice Edmead’s decision to recuse herself, the Justice’s decision was a provident exercise of her discretion (see Matter of Murphy, 82 NY2d 491, 495 [1993]; see also People v Grasso, 49 AD3d 303, 306-307 [1st Dept 2008]).

We have considered plaintiffs remaining contentions and find them unavailing.

Concur — Mazzarelli, J.P., Sweeny, Moskowitz, Clark and Kapnick, JJ.