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Goldberg v Lutwin (2006 NY Slip Op 50128(U))
[*1]


Decided on February 1, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., GOLIA and BELEN, JJ 2005-25 Q C.
David M. Goldberg, Appellant,
against
Joel M. Lutwin, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered October 19, 2004. The order denied plaintiff's motion to enlarge his time pursuant to CPLR 2004 to move pursuant to CPLR 4404 (b) to modify the decision after trial insofar as it failed to award plaintiff damages upon his second cause of action.
Order unanimously modified by granting the branch of plaintiff's motion which sought to enlarge his time pursuant to CPLR 2004 to move for relief pursuant to CPLR 4404 (b) and by granting the branch of his motion pursuant to CPLR 4404 (b) to the extent of granting plaintiff a new trial on his second cause of action limited to the issue of damages; as so modified, affirmed without costs.
file:///C|/Users/Peter/Desktop/NY/2/2006_50128.htm[4/21/2013 5:00:05 PM] Goldberg v Lutwin (2006 NY Slip Op 50128(U))
Plaintiff, an attorney, commenced the instant action for breach of a written contract to recover one-third of the legal fees recovered by defendant, an attorney, with respect to two cases for which, for a period of time, plaintiff was counsel of record to the plaintiffs in said cases. After a nonjury trial, the court rendered a decision which awarded plaintiff one-third of the net legal fees from one of the cases (the first cause of action), but denied plaintiff any portion of the legal fees from the second case (the second cause of action). After plaintiff's initial motion seeking to modify the decision insofar as it failed to award him damages on his second cause of action pursuant to CPLR 4404 (b) was denied as untimely, plaintiff made the instant motion seeking to enlarge his time to make a motion seeking such relief (CPLR 2004) and, upon an enlargement of time, for a modification of the decision so as to award him damages on his second cause of action. However, this motion was denied on the ground that it violated CPLR 4406. Plaintiff appeals from the denial of this motion. [*2]
In our opinion, the branch of plaintiff's motion which sought to enlarge his time pursuant to CPLR 2004 to seek relief under CPLR 4404 (b) should have been granted under the circumstances presented (see e.g. Johnson v Suffolk County Police Dept., 245 AD2d 340 [1997]; Casey v Slattery, 213 AD2d 890 [1995]; Pioli v Morgan Guar. Trust Co. of N.Y., 199 AD2d 144 [1993]). Likewise, the branch of plaintiff's motion which sought relief pursuant to CPLR 4404 (b) did not violate CPLR 4406 since plaintiff promptly made the instant motion, the prior motion was denied on procedural grounds, there was no prejudice to defendant and the matter was ripe for disposition (see
e.g. 767 Third Ave. LLC v Greble & Finger, LLP, 8 AD3d 75 [2004]). Moreover, under the circumstances presented, plaintiff's motion seeking to modify the court's decision insofar as it failed to award plaintiff damages upon his second cause of action should have been granted to the extent of awarding plaintiff a new trial on his second cause of action limited to the issue of damages. Decision Date: February 01, 2006

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