Opinion
Decided January 18, 1994
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Jacqueline W. Silbermann, J.
Lester Schwab Katz Dwyer, New York City (Keith D. Silverstein of counsel), for appellant.
M. Bruce Solomon, New York City, for respondent.
MEMORANDUM.
The appeal should be dismissed, without costs, by the Court sua sponte, upon the ground that the State Constitution (art VI, § 3 [b] [3], [4]) and the CPLR (CPLR 5601 [c]; 5602 [b] [1]) do not authorize a grant of leave to the defendant on a certified question in these circumstances.
In this action, the Appellate Division reversed a judgment of Supreme Court, rendered after a nonjury trial, dismissing the complaint. The Appellate Division awarded plaintiff judgment as to liability and remanded the case for a determination of damages. Thereafter, the Appellate Division granted defendant leave to appeal to this Court on a certified question.
Defendant argues that because the trial court never reached the issue of damages, the remand by the Appellate Division concerns an issue not previously addressed and, therefore, that a "new trial" within the meaning of CPLR 5601 (c) has not been granted. It is clear that the issue of damages was fully litigated at the first trial. Thus, the trial as to damages ordered by the Appellate Division, while limited in scope, constitutes a new trial under CPLR 5601 (c), and the State Constitution and the CPLR do not authorize a grant of leave on a certified question in these circumstances.
Defendant next argues that any stipulation for judgment absolute under CPLR 5601 (c) would be illusory here, that no appeal lies as of right, and that the Appellate Division thus has the power to grant leave under CPLR 5602 (b) (1) even though a new trial has been ordered. The limitation on the Appellate Division's power to grant leave under CPLR 5602 (b) (1) is based simply on whether a new trial is ordered, not on whether a valid stipulation for judgment absolute can be filed.
Judge TITONE taking no part.
Appeal dismissed, without costs, by the Court sua sponte, upon the ground that the State Constitution (art VI, § 3 [b] [3], [4]) and the CPLR (CPLR 5601 [c]; 5602 [b] [1]) do not authorize a grant of leave to defendant on a certified question in these circumstances, in a memorandum.