Opinion
513369/15
08-28-2020
Gwendolyn WILLIAMS, Individually and as Parent and Natural Guardian of TC, a minor under the age of fourteen (14), Plaintiff, v. Patrick Atse NCHO, Gregory Iskhakov, and Valentina Ciotti, Defendants.
Attorney for Gwendolyn Williams and TC, Avinoam Cohen, Esq., A. Cohen Law Firm, P.C., 11 Sunrise Plaza, Suite 304, Valley Stream, NY 11580. Attorney for Patrick Atse Ncho, John James Komar, Esq., Russo & Toner, LLP, 33 Whitehall St, New York, NY 10004.
Attorney for Gwendolyn Williams and TC, Avinoam Cohen, Esq., A. Cohen Law Firm, P.C., 11 Sunrise Plaza, Suite 304, Valley Stream, NY 11580.
Attorney for Patrick Atse Ncho, John James Komar, Esq., Russo & Toner, LLP, 33 Whitehall St, New York, NY 10004.
Francois A. Rivera, J.
By notice of motion filed on January 20, 2020, under motion sequence number thirteen, defendant Patrick Atse Ncho (hereinafter Ncho), seeks an order: (1) extending Ncho's time to file a post-trial motion in the above matter and (2) directing the plaintiff Gwendolyn Williams (hereinafter Williams), individually, and on behalf of TC, her infant child (hereinafter the infant), post a bond in the amount of no less than $7,500.00 as security for cost pursuant to CPLR sections 8501 (a) and 8503. The motion is opposed by the plaintiffs.
On November 2, 2015, Williams commenced the instant action for damages for personal injuries, individually and on behalf of the infant by filing a summons and complaint with the Kings County Clerk's office. On November 7, 2019, defendants Gregory Iskjakov and Valentina Ciotti were dismissed from the case by a verdict in their favor at the liability phase of the trial. On December 9, 2019, the jury returned a verdict awarding the plaintiffs the sum of $100,000.00 as against Ncho.
On January 3, 2020, the Court held a post-trial conference. At that time, the parties entered into a stipulation which was Court ordered. The order provided that Ncho would have until January 30, 2020 to file a post-trial motion; the plaintiffs would have thirty (30) days thereafter to file opposition; Ncho would have ten (10) days thereafter to file a reply; and the motion would be heard by the Court on March 13, 2020. Due to the COVID—19 pandemic, the partial shutdown of the Courthouse, and through no fault of the parties the matter was not heard on March 13, 2020.
Ncho filed the instant motion on January 20, 2020, ten (10) days before the date the post-trial motion was due. Due to the COVID—19 pandemic, the instant decision and order is being made nearly six months after the date the instant motion was made.
After reviewing the instant motion papers and plaintiff's opposition papers the Court finds that under these extraordinary and unusual circumstances, granting an extension pursuant to CPLR 2004 is not an improvident exercise of discretion.
Ncho's motion also seeks an order directing the plaintiffs to post a bond in the amount of no less than $7,500.00 pursuant to CPLR sections 8501 and 8503. Williams commenced the instant on behalf of the infant and on her own behalf. The verified complaint avers that both Williams and the infant have been residents of the State of New Jersey since the date that the instant action was commenced. As a nonresident of New York, the plaintiff is required to post security for costs (see CPLR 8501 [a] ; Small v. Stern , 65 AD3d 1326 [2nd Dept 2009] ; Verdino v. Alexandrou , 253 AD2d 553, 554 [2nd Dept 1998] ).
CPLR 8503 provides in pertinent part as follows:
Security for costs shall be given by an undertaking in an amount of five hundred dollars in counties within the city of New York, and two hundred fifty dollars in all other counties, or such greater amount as shall be fixed by the court that the plaintiff shall pay all legal costs awarded to the defendant.
Inasmuch as the instant action is in Kings County Supreme Court, pursuant to CPLR 8503, security for costs shall be given by an undertaking in an amount of $500.00. The court has the discretion to fix an amount greater than $500.00 (see CPLR 8503 ). Although Ncho has proposed that the plaintiffs be required to post security in an amount of not less than $7,500.00, the Court rejects that amount as excessive and fixes the amount at the statutory amount ( Yarwood v. Cty. of Suffolk , 174 AD3d 954, 955 [2nd Dept 2019] ).
CONCLUSION
The motion of defendant Patrick Atse Ncho for an extension of time to file a post-trial motion in the above matter is granted.
Patrick Atse Ncho must file the post-verdict motion on or before October 30, 2020, plaintiff must file opposition on or before November 30, 2020 and Patrick Atse Ncho may file a reply on or before December 14, 2020.
The motion of defendant Patrick Atse Ncho for an order pursuant to CPLR ssections 8501 (a) and 8503 directing plaintiff Gwendolyn Williams, individually, and on behalf of TC, to post a bond is granted to the extent that Gwendolyn Williams must post a bond in the amount of $500.00 on or before October 30, 2020.
The foregoing constitutes the decision and order of the Court.