Opinion
May 6, 1985
Appeal from the Supreme Court, Kings County (Kartell, J).
Judgment reversed, on the law and the facts, motion granted, interlocutory judgment vacated, and new trial granted, with costs to abide the event.
The trial court erred in denying appellants' motion, inter alia, for a new trial ( see, CPLR 5015 [a] [2]). The evidence submitted in support of the motion, consisting of depositions in another action, which were materially inconsistent with the testimony at trial concerning Norman Groh's ownership of stock in National Hotel Management Corporation (National), obviously could not have been discovered in time to move for a new trial prior to judgment ( see, CPLR 4404, 4405 PLR), and went to the heart of the litigated issues.
Although motions of this type are addressed to the sound discretion of the trial court ( see, Matter of Cristo, 92 A.D.2d 691), on the record before us we are compelled to conclude that such discretion was improvidently exercised. Groh's testimony at trial that he was not a stockholder was plainly an underlying basis for Trial Term's ruling that his alleged misconduct was collateral to the breach of contract claim and the defense that Groh's termination was justified because of his affiliation with National. In addition, his testimony curbed counsel's ability to cross-examine.
The inconsistency between the sworn statements at trial and the depositions is egregious. Either Groh's stock was transferred to Hugh Jones, National's president, without any conditions attached, as the plaintiffs testified, and Trial Term found, or it was held by Jones "in trust" for Groh and subject to return to him, as the testimony at the depositions shows. In such circumstances, we think it appropriate to grant a new trial ( see, Cesla v. Frydman, 47 A.D.2d 742; Hawkins v. William F. Regan, Inc., 39 A.D.2d 908).
With respect to the damages aspect of the appeal we note that the testimony of the principal witness in support of plaintiffs' claim that appellants caused them to lose the opportunity to manage the Memphis Hilton was not credible ( see, Matter of McMillan, 218 N.Y. 64), and, indeed, such damages were never alleged nor sought in the complaint. Titone, J.P., Thompson, Bracken and Rubin, JJ., concur.