| Wong v 2669 Owners Ltd |
| 2015 NY Slip Op 01875 |
| Decided on March 5, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on March 5, 2015
Mazzarelli, J.P., Sweeny, Moskowitz, Clark, Kapnick, JJ.
14442 104404/09 590758/09
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.
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 AD3d 203, 207 [2d Dept 2007], lv denied 10 NY3d 708 [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 AD3d 289 [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 NY2d [*2]491, 495 [1993]; see also People v Grasso, 49 AD3d 303, 306-307 [1st Dept 2008]).
We have considered plaintiff's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 5, 2015
CLERK