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Stallworth v. Lodi Inc.

Defendant Suffered No Prejudice From Jurist, Motion for A New Trial Denied

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RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION NOTICE OF MOTION & AFFIDAVIT OF SERVICE          1-2 AFFIRMATION IN SUPPORT & EXH. ANNEXED             3-4 AFFIRMATION IN OPPOSITION & EXH. ANNEXED        5-6 AFFIRMATION IN REPLY  7 DECISION AND ORDER This Honorable Court Decides and Orders after oral argument, Defendants’ Motion to Renew pursuant to CPLR 2221 (e) is hereby GRANTED; the underlying, timely made pursuant to CPLR §4405, post-verdict motion pursuant to CPLR §4404 (a), CPLR §4110-B, and CPLR §4405 to set aside the jury verdict of $3,175,000 for a new trial is hereby DENIED. This court exercises its discretion in the interest of justice under the circumstances herein where the jury has spoken to Sua Sponte conform the pleading to the proof to add allegation of latent susceptibility to injury to conform to the evidence adduced at trial pursuant to CPLR §3025 (c), having found no surprise nor prejudice to Defendant, particularly where Defendant similarly requested charge for aggravation of pre-existing condition. Such exercise of judicial discretion under such circumstances where the jury has spoken, is granted freely in the interest of justice (see Suburban Lawn Serv. v. Allstate Ins. Co., 68 Misc 2d 1010, 1012 [Nassau Dist Ct 1972], Murray v. New York, 43 NY2d 400, 405 [1977]; Dittmar Explosives, Inc. v. A. E. Ottaviano, Inc., 20 NY2d 498, 502 [1967]), or on appeal for the first time, see Diemer v. Diemer, 8 NY2d 206, 211 [1960]; Dampskibsselskabet Torm A/S v. P. L. Thomas Paper Co., 26 AD2d 347, 352 [1st Dept 1966]; Kimso Apts., LLC v. Gandhi, 24 NY3d 403, 412-414 [2014], citing Pittsford Gravel Corp. v. Zoning Bd. of Perinton, 43 AD2d 811, 812 [4th Dept 1973]; Harbor Assoc., Inc. v. Asheroff, 35 AD2d 667 [2d Dept 1970]; Di Rosse v. Wein, 24 AD2d 510, 511 [2d Dept 1965], and Weinstein-Korn-Miller, NY Civ Prac

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