Corkery v. Utility Lines, Inc.

46 A.D.2d 892, 363 N.Y.S.2d 801, 1974 N.Y. App. Div. LEXIS 3421

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1974
• Status: Published

Opinion

Judgment of the Supreme Court, Suffolk County, entered January 7, 1974, (1) affirmed insofar as it is in favor of defendant John E. Corkery, Jr., against plaintiff Arthur S. Toomey (Action No. II) and in favor of defendants Utility Lines, Inc., and Arthur S. Toomey against plaintiffs' John E. Corkery individually and John E. Corkery, Jr., without costs, and (2) reversed, on the law, insofar as it is in favor of plaintiff John E. Corkery, as administrator of the estate of Leslie Kathleen Corkery, and in favor of defendants Utility Lines, Inc., and Arthur S. Toomey on their counterclaim against plaintiff John E. Corkery, Jr., and, as between these parties, action severed and new trial granted, solely on the issue of damages, with costs to abide the event, unless, within 30 days after entry of the order to be made hereon, plaintiff John E. Corkery, as administrator of the estate of Leslie Kathleen Corkery, shall serve and file in the office of the clerk of the trial court, a written stipulation consenting to reduce the verdict in favor of him, as administrator, from $150,000 to $40,000 and to the entry of amended judgment accordingly, in which event the judgment shall also be amended to reduce accordingly the recovery over in favor of Utilities Lines, Inc.,. and Arthur S. Toomey against John E. Corkery, and the judgment, as so reduced and amended, is affirmed, without costs. The findings of fact are affirmed. Appeals from the order of the same court, dated December 3, 1973, dismissed, without costs. No appeal lies from an order denying a motion for a new trial based upon the trial minutes. Under the circumstances herein, the amount of damages was excessive to the extent indicated hereinabove. Gulotta, P. J., Martuscello, Latham, Christ and Benjamin, JJ., concur.