New York Court of Appeals, 1993

Lusenskas v. Axelrod

New York Court of Appeals · Decided May 11, 1993

81 N.Y.2d 300; 614 N.E.2d 729; 598 N.Y.S.2d 166; 1993 N.Y. LEXIS 1174

Cases that cite this one

22 later published cases cite this decision.

Flaxer v. Gifford (2d Cir. 2016)
O'Connell v. Kavanagh (Appellate Division of the Supreme Court of New York 1997)
Evvtex Co., Inc. v. Hartley Cooper Associates Limited (2d Cir. 1996)
Evvtex Co. v. Hartley Cooper Associates Ltd. (2d Cir. 1996)
In re: Lehr Construction Corp. (2d Cir. 2016)
Kevin Grady v.Chenango Valley Central School District , Joanne Secky v. New Paltz Central School District (N.Y. 2023)
Schiavone v. Seaman Arms, LLC (Appellate Division of the Supreme Court of New York 2019)
People v. Rudolph (N.Y. 2013)
Stolowski v. 234 East 178th Street LLC (Appellate Division of the Supreme Court of New York 2013)
Stolowski v. 234 East 178th Street LLC (Appellate Division of the Supreme Court of New York 2013)
Fernandez v. City of New York (Appellate Division of the Supreme Court of New York 2011)
Driscoll v. Tower Associates (Appellate Division of the Supreme Court of New York 2005)
O'Neill v. Julav Realty, Ltd. (Appellate Division of the Supreme Court of New York 2003)
Jensen v. Oak Point Assets, LLC (Appellate Division of the Supreme Court of New York 2002)
Herbert v. Carter (Appellate Division of the Supreme Court of New York 2001)
Bongiovanni v. KMO-361 Realty Associates (Appellate Division of the Supreme Court of New York 2000)
Nuñez v. 38 Sickles Street Corp. (Appellate Division of the Supreme Court of New York 2000)
O'Grady v. New York City Housing Authority (Appellate Division of the Supreme Court of New York 1999)
Infante v. State (Appellate Division of the Supreme Court of New York 1999)
Scherrer v. Time Equities, Inc. (Appellate Division of the Supreme Court of New York 1995)
Plunkett v. Emergency Medical Service (New York Supreme Court 1995)
Bustamante v. Westinghouse Elevator Co. (Appellate Division of the Supreme Court of New York 1993)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION OF THE COURT

Per Curiam.

In this action to recover damages for personal injury, defendants appeal pursuant to CPLR 5601 (c) from an order of the Appellate Division which reversed a judgment entered on a jury verdict for defendants and ordered a new trial. Defendants stipulate that, in the event of an affirmance, judgment absolute shall be entered against them on the issue of liability only. Thus, even if judgment absolute were entered against defendants, a trial to assess damages would still be required.

Under CPLR 5601 (c) an appeal to this Court will lie from a nonfinal order of the Appellate Division which grants a new trial if the appellant stipulates that an affirmance by this Court will result in an absolute judgment against him. Such a stipulation is, however, deemed illusory if the appellant would lose nothing in the event of this Court’s affirmance of the Appellate Division order. For example, in Goldberg v Elkom Co. (36 NY2d 914), the Appellate Division reversed a judgment of Supreme Court awarding plaintiffs no damages following a trial on that issue and granted a new trial on damages. Defendant took an appeal to this Court, stipulating to judgment absolute in the event of an affirmance. Because defendant did not thereby relinquish anything, as an affirmance by this Court would have left defendant with a determination of no damages against him, the stipulation was deemed illusory. In contrast, because the appealing defendants here would be relinquishing the possibility of being absolved from all liability if a new trial were to be held, the stipulation for judgment absolute on liability only cannot be viewed as illusory.

While the present stipulation is not illusory, it is insufficient in another respect. As established by Miller v Perillo (49 NY2d 1044),* a stipulation for judgment absolute must also effect a final determination of the action as to both liability and damages. Otherwise, it frustrates the underlying purpose *302of the statute, which is to avoid prolonged litigation and multiple appeals (see, Judicial Council Comment to proposed Civ Prac Act § 589 [3], the predecessor to CPLR 5601 [c], 7th Ann Report of NY Jud Council, at 529). Thus, an appeal upon a stipulation for judgment absolute on liability only does not lie, if damages remain to be tried. To the extent that Brown v Poritzky (30 NY2d 289) holds to the contrary, it is overruled.

The appeal should, therefore, be dismissed, and the motion for a stay dismissed as academic.

On the Court’s own motion, appeal dismissed, without costs. Motion for a stay dismissed as academic.

In Miller v Perillo, the defendants-appellants stipulated to judgment absolute on liability only. To the extent that the entry in Miller indicates that such a stipulation is illusory, it is misleading and should be disregarded. However, the operative significance of Miller is the requirement that the proposed stipulation finally determine both liability and damages, and in this respect the continuing viability of its holding is affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.