Devine v. City of New York

262 A.D.2d 443, 691 N.Y.S.2d 324, 1999 N.Y. App. Div. LEXIS 6614

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Lebowitz, J.), dated April 6, 1998, which denied their motion to set aside the jury verdict in favor of the defendant pursuant to CPLR 4404 (a), and for leave to reargue the court’s prior decision to not charge General Municipal Law § 205-e to the jury.

Ordered that the appeal from so much of the order as denied that branch of the plaintiffs’ motion which was for reargument is dismissed, as no appeal lies from an order denying reargument of a decision (see, Stockfield v Stockfield, 131 AD2d 834; DeFalco v JRS Confectionary, 118 AD2d 752); and it is further,

Ordered that the order is otherwise affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The plaintiffs’ contention that the jury verdict should be set aside as inconsistent is unpreserved for appellate review because the issue was not raised before the jury was discharged (see, Barry v Manglass, 55 NY2d 803, 806; Kraus v Rotem, 249 AD2d 371). In any event, we find no inconsistency in the jury verdict (see, Briccio v Disbrow, 212 AD2d 565; Moskowitz v Israel, 209 AD2d 676).

The Supreme Court properly denied that portion of the motion which sought to set aside the verdict as against the weight of the evidence. The jury verdict is supported by a fair interpretation of the evidence presented at trial (see, Galimberti v Carrier Indus., 222 AD2d 649; Nicastro v Park, 113 AD2d 129). Bracken, J. P., Santucci, McGinity and Feuerstein, JJ., concur.