From Casetext: Smarter Legal Research

Macy's Inc. v. Martha Stewart Living Omnimedia, Inc.

Supreme Court, Appellate Division, First Department, New York.
Nov 10, 2016
144 A.D.3d 453 (N.Y. App. Div. 2016)

Opinion

11-10-2016

MACY'S INC., et al., Plaintiffs–Appellants, v. MARTHA STEWART LIVING OMNIMEDIA, INC., Defendant, J.C. Penney Corporation, Inc., Defendant–Respondent.

Jones Day, New York (Theodore M. Grossman of counsel), for appellants. Munger, Tolles & Olson LLP, Los Angeles, CA (Mark Epstein of the California bar, admitted pro hac vice, of counsel), for respondent.


Jones Day, New York (Theodore M. Grossman of counsel), for appellants.

Munger, Tolles & Olson LLP, Los Angeles, CA (Mark Epstein of the California bar, admitted pro hac vice, of counsel), for respondent.

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered June 11, 2015, which denied plaintiffs' (collectively, Macy's) motion to clarify a judgment, same court and Justice, entered June 16, 2014, or, in the alternative, to vacate an order, same court and Justice, entered April 1, 2015, which denied Macy's motion to stay the proceedings before the judicial hearing officer to hear and report on Macy's damages on its cause of action for tortious interference with contract pending the resolution of Macy's two remaining claims, unanimously affirmed with respect to the denial of the motion for clarification, and appeal therefrom, to the extent it denied so much of the motion as sought to vacate the aforesaid April 2015 order, dismissed, without costs, as moot.

Macy's purported request for clarification of the June 2014 judgment with respect to the measure of damages on Macy's cause of action for tortious interference with contract is effectively a motion for reargument, the denial of which is not appealable (see Mendelson v Empire Assoc. Realty Co. Assn., 57 A.D.3d 413, 869 N.Y.S.2d 342 [1st Dept.2008], lv. denied 12 N.Y.3d 707, 879 N.Y.S.2d 54, 906 N.E.2d 1088 [2009] ; Mordas v. Shenkein, 19 A.D.3d 182, 798 N.Y.S.2d 396 [1st Dept.2005] ). As a motion for reargument, it also is untimely (see CPLR 2221[d][3] ). Likewise, if considered as a motion to set aside the judgment, then, it is untimely (see CPLR 4404[b] ; 4405).

Because the proceedings before the judicial hearing officer to hear and report on Macy's damages on its claim for tortious interference with contract have concluded, the portion of the appeal challenging the denial of a stay of those proceedings has become moot. In any event, in the absence of any compelling reason to resolve the second and third causes of action before the judicial hearing officer reached a determination as to damages on the first cause of action, the court's denial of the stay was a proper exercise of discretion.

FRIEDMAN, J.P., SWEENY, SAXE, MOSKOWITZ, JJ., concur.


Summaries of

Macy's Inc. v. Martha Stewart Living Omnimedia, Inc.

Supreme Court, Appellate Division, First Department, New York.
Nov 10, 2016
144 A.D.3d 453 (N.Y. App. Div. 2016)
Case details for

Macy's Inc. v. Martha Stewart Living Omnimedia, Inc.

Case Details

Full title:MACY'S INC., et al., Plaintiffs–Appellants, v. MARTHA STEWART LIVING…

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

Date published: Nov 10, 2016

Citations

144 A.D.3d 453 (N.Y. App. Div. 2016)
2016 N.Y. Slip Op. 7393
40 N.Y.S.3d 265

Citing Cases

N.Y.C. Asbestos Litig. Linda English v. Avon Prods., Inc.

Alternatively, pursuant to CPLR §2221(d)(3) a motion for reargument shall be made within thirty (30) days…

HSBC Bank United States v. Merrill Lynch Mortg. Lending, Inc.

Its motion to "clarify" is therefore "properly deemed one to reargue." (See Mendelson v Empire Assocs. Realty…