Opinion
July 7, 1967
Nicholas Konst for petitioner landlord.
Samuel C. Cellino for respondent tenant.
Plaintiff moves under CPLR 4404 to set aside "the judgment and the verdicts of the jury rendered in this case after trial thereof, culminating on May 4, 1967".
The notice of motion is dated June 20, 1967, returnable June 30, 1967, at 2:00 P.M.
The trial with a jury was held on May 1, 2, 3 and 4, 1967.
CPLR 4405 entitled, "Time and judge before whom post-trial motion made," provides: "A motion under this article shall be made before the judge who presided at the trial within fifteen days after decision, verdict or discharge of the jury." CPLR 4406 entitled, "Single post-trial motion," provides: "In addition to motions made orally immediately after decision, verdict or discharge of the jury, there shall be only one motion under this article with respect to any decision by a court, or to a verdict on issues triable of right by a jury".
This motion cannot be "made" beyond fifteen days "after decision, verdict or discharge of the jury."
The court's decision may be oral or written, stating the essential facts (CPLR 4213, subd. [b]), and shall be rendered within 60 days after the cause or matter is finally submitted, unless the parties agree to extend the time. (subd. [c]).
When the jury renders a verdict, the Clerk shall enter in his minutes the time and place or trial, names of jurors and witnesses, general verdict and any answers to written interrogatories, or questions and answers or other written findings constituting the special verdict and court's direction as to subsequent proceedings. (CPLR 4112.)
When five-sixths of the jurors cannot agree, the court shall "discharge the jury" (CPLR 4113, subd. [b].)
When the court's decision is oral in open court, the jury's verdict is announced by its foreman in open court and the jury is discharged by the court, such decision, verdict and discharge are entered forthwith by the Clerk in his minutes, a public record.
A motion to confirm or reject an advisory verdict or the report of a Referee to report "shall be made within fifteen days after the verdict or the filing of the report". (CPLR 4403. Emphasis supplied.)
Although CPLR 4405 does not mention the filing of the written decision as the time starting the 15-day limitation, it has been so held. ( Bernstein v. Swidunovich, 44 Misc.2d 728, revd. on other grounds 20 A.D.2d 883. See, also, Matter of Schmidt v. Schmidt, 44 Misc.2d 661, 662.)
Here, the motion was made well beyond the 15-day limitation; it is denied, without costs.