Sharoni v. Michael

211 A.D.2d 710, 621 N.Y.S.2d 900, 1995 N.Y. App. Div. LEXIS 492

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1995
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Held, J.), dated September 15, 1992, which granted the defendant’s motion to set aside a jury verdict finding the defendant 70% at fault in the happening of an accident, and (2) a judgment of the sáme court, entered November 16, 1992, which dismissed the complaint.

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

Ordered that the judgment is affirmed; and it is further,

Ordered that the defendant is awarded one bill of costs.

The appeal from the 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 appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).

The Supreme Court acted correctly in setting aside the jury verdict. The evidence presented at trial failed to establish that the defendant owed a duty to protect the infant plaintiff from the consequences of leaving the house and descending the outside stairs that had been made wet by the rain (see, Purdy v Public Adm’r of County of Westchester, 72 NY2d 1, 8; Restatement [Second] of Torts §§ 314, 315). Rosenblatt, J. P., Altman, Friedmann and Florio, JJ., concur.