Accolla v. Green Bus Lines, Inc.

260 A.D.2d 515, 686 N.Y.S.2d 734, 1999 N.Y. App. Div. LEXIS 4085

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 19, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Golia, J.), dated March 12, 1998, which denied his motion to set aside a jury verdict in favor of the defendants, and (2) a judgment of the same court, dated June 9, 1998, which dismissed the complaint.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, on the facts, the order dated March 12, 1998, is vacated, the plaintiff’s motion is granted, and a new trial is granted; and it is further,

Ordered that one bill of costs is awarded to abide the event.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

In view of the trial testimony of the defendant Furman Hart, Jr., the verdict on liability could not have been reached based upon any fair interpretation of the evidence (see, e.g., Nicastro v Park, 113 AD2d 129, 134; see also, Grassi v Ulrich, 87 NY2d 954; Lolik v Big V Supermarkets, 86 NY2d 744; cf., Carotenuto v Harran Transp. Co., 226 AD2d 334). Accordingly, a new trial is granted. Ritter, J. P., Altman, Friedmann and Goldstein, JJ., concur.