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Solomon Zwiebel, Faigy Zwiebel, Yaakov T. Bron and Chanah Bron, Respondents v. Shmiel D. Guttman and Williamsburg Leasing

April 15, 2013

SOLOMON ZWIEBEL, FAIGY ZWIEBEL, YAAKOV T. BRON AND CHANAH BRON, RESPONDENTS,
v.
SHMIEL D. GUTTMAN AND WILLIAMSBURG LEASING, APPELLANTS, APRI -AND- CHASE MANHATTAN AUTO FINANCE CORP., DEFENDANT.



Appeals from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered October 7, 2008.

Zwiebel v Guttman

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 15, 2013

PRESENT: WESTON, J.P., RIOS and ALIOTTA, JJ

The order denied separate motions by defendants Shmiel D. Guttman and Williamsburg Leasing to set aside a jury verdict on the issue of damages. ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that, on the court's own motion, the portions of the notices of appeal that are from so much of the order entered October 7, 2008 as denied the branches of the separate motions by defendants Shmiel D. Guttman and Williamsburg Leasing seeking to set aside the portion of the verdict that is in favor of plaintiff Solomon Zwiebel are deemed to be premature notices of appeal from a judgment of the same court entered July 13, 2010, awarding said plaintiff the principal sum of $430,000 (see CPLR 5520 [c]); and it is further,

ORDERED that, on the court's own motion, the portions of the notices of appeal that are from so much of the order entered October 7, 2008 as denied the branches of the separate motions by defendants Shmiel D. Guttman and Williamsburg Leasing seeking to set aside the portion of the verdict that is in favor of plaintiff Faigy Zwiebel are deemed to be premature notices of appeal from a judgment of the same court entered July 13, 2010, awarding said plaintiff the principal sum of $15,000 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgments entered July 13, 2010 are reversed, without costs, so much of the order entered October 7, 2008 as denied the branches of the separate motions by defendants Shmiel D. Guttman and Williamsburg Leasing seeking to set aside the portions of the verdict that are in favor of plaintiffs Solomon Zwiebel and Faigy Zwiebel is vacated, said branches of the separate motions are granted, and the matter is remitted to the Civil Court for a new trial on the issue of damages to be awarded to plaintiffs Solomon Zwiebel and Faigy Zwiebel as against defendants Shmiel D. Guttman and Williamsburg Leasing; and it is further,

ORDERED that the October 7, 2008 order, insofar as reviewed on direct appeal, is reversed, without costs, the branches of the separate motions by defendants Shmiel D. Guttman and Williamsburg Leasing to set aside the portions of the verdict in favor of plaintiffs Yaakov T. Bron and Chanah Bron are granted, and the matter is remitted to the Civil Court for a new trial on the issue of damages to be awarded to plaintiffs Yaakov T. Bron and Chanah Bron as against defendants Shmiel D. Guttman and Williamsburg Leasing.

This personal injury action arises out of a single-vehicle accident which occurred in upstate New York on September 1, 2002. Several months before the accident, plaintiff Solomon Zwiebel had entered into a lease agreement for the motor vehicle involved in the accident with defendant Williamsburg Leasing, which assigned all of its rights under the lease agreement to defendant Chase Manhattan Auto Finance Corp. (Chase), which had provided the financing. At the time of the accident, the vehicle was being driven by defendant Shmiel D. Guttman. Plaintiff Solomon Zwiebel and plaintiff Yaakov T. Bron were passengers in the vehicle, and both were injured. Except for immediate emergency care, both declined to be treated at a local hospital near the area where the accident had occurred and, instead, elected to travel to New York City hospitals for medical treatment. As a result of the accident, Mr. Zwiebel sustained a comminuted fracture of the midshaft of the distal humerus of his left arm, requiring open reduction and internal fixation surgery. Mr. Bron sustained a midshaft tibiofibular fracture requiring internal fixation surgery, and a subsequent surgery to alter the positioning of a rod that had been inserted during the first surgery. Messrs. Zwiebel and Bron, along with their spouses, who asserted derivative claims, commenced this action against defendants Guttman, Williamsburg Leasing, and Chase. Plaintiffs' motion for summary judgment on the issue of liability was granted by the Supreme Court, Kings County, and, after the action was transferred to the Civil Court, Kings County, pursuant to CPLR 325 (d), a jury trial on the issue of damages was conducted in February 2008. The jury awarded $200,000 for past pain and suffering and $230,000 for future pain and suffering to plaintiff Solomon Zwiebel, and $15,000 to plaintiff Faigy Zwiebel on her derivative claim. The jury awarded $300,000 for past pain and suffering and $430,000 for future pain and suffering to plaintiff Yaakov T. Bron, and $10,000 to plaintiff Chanah Bron on her derivative claim. Defendants Guttman and Williamsburg Leasing (defendants) separately moved to set aside the verdict. Their motions were denied by order dated October 7, 2008, from which they appeal. (Plaintiffs have settled the case with defendant Chase.)

As separate judgments in favor of plaintiffs Solomon Zwiebel and Faigy Zwiebel were entered on July 13, 2010, the portions of the notices of appeal that are from so much of the October 7, 2008 order as denied the branches of the separate motions by defendants seeking to set aside the portions of the jury verdict awarding damages to plaintiffs Solomon Zwiebel and Faigy Zwiebel are deemed to be premature notices of appeal from these judgments (see CPLR 5520 [c]).

At issue on this appeal is whether the Civil Court improvidently exercised its discretion in requiring the three defendants to designate a single attorney to represent them during the damages phase of the trial. Under the circumstances of this case, we conclude that the court's decision constituted an ...


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