Opinion
14442, 104404/09, 590758/09
03-05-2015
Helena WONG, Plaintiff–Appellant, v. 2669 OWNERS LTD., Defendant, Hsia Chao Yu, Defendant–Respondent. [And a Third–Party Action].
Bedford Mantia, LLP, New York (Cyril K. Bedford of counsel), for appellant. Law Office of Amy Y. Chen, PLLC, Flushing (Amy Y. Chen of counsel), for respondent.
Bedford Mantia, LLP, New York (Cyril K. Bedford of counsel), for appellant.
Law Office of Amy Y. Chen, PLLC, Flushing (Amy Y. Chen of counsel), for respondent.
Opinion Order, Supreme Court, New York County (Carol Edmead, J.), entered June 11, 2013, which granted defendant/third-party plaintiff's CPLR 4404(b) posttrial motion to the extent of vacating an order and judgment (one paper), same court and Justice, entered March 14, 2013, ordering a new trial, and directing the reassignment of the matter to a different IAS Part, unanimously affirmed, without costs.
The motion court properly exercised its discretion in setting aside the order and judgment (see CPLR 4404[b] ; see also Stinton v. Robin's Wood, Inc., 45 A.D.3d 203, 207, 842 N.Y.S.2d 477 [2d Dept.2007], lv. denied 10 N.Y.3d 708, 859 N.Y.S.2d 393, 889 N.E.2d 80 [2008] ). The court's evaluation of the parties' credibility was based on a mischaracterization of their testimony at trial, and therefore its decision to order a new trial will not be disturbed (see Saperstein v. Lewenberg, 11 A.D.3d 289, 782 N.Y.S.2d 720 [1st Dept.2004] [judgment rendered after a bench trial may be disturbed if the court's conclusions, including its credibility determinations, cannot be supported by any fair interpretation of the evidence] ).
To the extent plaintiff challenges Justice Edmead's decision to recuse herself, the Justice's decision was a provident exercise of her discretion (see Matter of Murphy, 82 N.Y.2d 491, 495, 605 N.Y.S.2d 232, 626 N.E.2d 48 [1993] ; see also People v. Grasso, 49 A.D.3d 303, 306–307, 853 N.Y.S.2d 64 [1st Dept.2008] ).
We have considered plaintiff's remaining contentions and find them unavailing.
MAZZARELLI, J.P., SWEENY, MOSKOWITZ, CLARK, KAPNICK, JJ., concur.