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Gordon v. City of New York

Other Lower Courts

May 22, 2001

Rebecca Gordon et al., Plaintiffs,
v.
City of New York, Defendant.

COUNSEL

Rubert & Gross, P. C., Brooklyn, for plaintiffs.

Michael D. Hess, Corporation Counsel of New York City (Debra E. Kim of counsel), for defendant.

OPINION

Victor I. Barron, J.

Plaintiffs Rebecca Gordon and Carlton Gordon (plaintiffs) move, by order to show cause, for a judgment in favor of Rebecca Gordon, in the sum of $327,833, and for a further judgment in favor of Carlton Gordon, in the sum of $7,000,

Page 247

with interest at a rate of 9% per annum, running from December 23, 1996.

On February 13, 1992, Rebecca Gordon tripped and fell while walking on a public sidewalk in Brooklyn, and sustained various injuries. By summons and complaint dated July 30, 1992, plaintiffs commenced the instant action against defendants City of New York (the City), Trocom Construction Company (Trocom), and Willets Point Construction Company (Willets). [*] In bringing this action, plaintiffs alleged that the City was negligent in creating and/or failing to remedy a dangerous condition on the sidewalk in question.

Thereafter, plaintiffs moved to strike the City's answer for failing to comply with their discovery demands. In an order dated December 23, 1996, Justice Samuel Greenstein of this Court granted plaintiffs' motion, without opposition, and ordered the City's answer stricken. In the same order, Justice Greenstein dismissed plaintiffs' action against Trocom and ordered Willets to comply with plaintiffs' discovery demands. Justice Greenstein also struck a proposed provision in the order which would have severed plaintiffs' action against the City and set the matter down for an immediate inquest on damages--apparently because Willets was still an active defendant in the case.

Plaintiffs' action against Willets was eventually resolved, thereby leaving the City as the only remaining defendant. Accordingly, on or about May 4, 2000, plaintiffs' claims against the City were set down for an inquest on damages without any further court orders or objections by the City. On May 10, 2000, the jury awarded Rebecca Gordon $327,833 in damages against the City and further awarded Carlton Gordon $7,000 in damages. Subsequently, plaintiffs attempted to enter judgment with the Judgment Clerk in these amounts, with interest running from December 23, 1996 (i.e., the date of Justice Greenstein's order). However, the Judgment Clerk advised plaintiffs that he/she could not enter judgment with interest running from December 23, 1996 without an order of the court.

Plaintiffs now move for a judgment with interest running from December 23, 1996, at a rate of 9% per annum. In so moving, plaintiffs maintain that under CPLR 5002, as well as applicable case law, interest must be calculated from the date that liability is established. Here, plaintiffs reason that the

Page 248

City's liability was established on the date that Justice Greenstein ordered the City's answer stricken.

In opposition to plaintiffs' motion, the City argues that interest only began to accrue on May 10, 2000, when the jury awarded plaintiffs damages. According to the City, an order striking an answer is not a verdict, report or decision under CPLR 5002 because a defendant's liability does ...


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