SAVERESE v. [And Other Actions]. (2007)

Supreme Court, Appellate Division, First Department, New York.

Michael SAVERESE, Plaintiff, v. NICOTRA GROUP, LLC, et al., Defendants-Respondents, Theodore Williams Construction Company, Defendant, Schwartz Goldstone & Campisi, LLP, Non-Party Appellants. Baxter Smith Tassan & Shapiro, P.C., et al., Non-Party Respondents. [And Other Actions].

Decided: November 08, 2007

MAZZARELLI, J.P., MARLOW, WILLIAMS, CATTERSON, KAVANAGH, JJ.

Alexander J. Wulwick, New York, for appellants. Billig Law, P.C., New York (Suzanne M. Billig of counsel), for Nicotra Group, LLC and Nicotra Hotel I, LLC, respondents. Baxter Smith Tassan & Shapiro, P.C., White Plains (James J. Lofrese of counsel), for Baxter Smith Tassan & Shapiro, P.C., and C & M Tile & Marble Contractors, Inc., respondents.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered on or about April 19, 2007, which conditioned retrial on plaintiff's counsel paying costs in the aggregate amount of $29,722.40 to defense counsel, unanimously affirmed, with costs.

The court properly awarded costs to defense counsel, since the record establishes that plaintiff's counsel had been unprepared on the issue of damages and was unable to go forward without a 10-day continuance. As a result, the court granted plaintiff's counsel's mistrial motion, and it did so on terms that were “just” within the meaning of CPLR 4402.

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