Tobacco v. North Babylon Volunteer Fire Department

276 A.D.2d 551, 714 N.Y.S.2d 450, 2000 N.Y. App. Div. LEXIS 10154

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 10, 2000
• Status: Published

Opinion

In a consolidated action, inter alia, to recover damages for personal injuries, (1) the defendant North Babylon Volunteer Fire Department appeals (a), as limited by its brief, from so much of an interlocutory judgment of the Supreme Court, Suffolk County (Catterson, J.), dated March 3, 1999, as, upon a jury verdict on the issue of liability, finding it to be 40% at fault in the happening of the accident, is in favor of the plaintiff and against it on the issue of liability, and (b) from an order of the same court, dated March 5, 1999, which denied its motion pursuant to CPLR 4401 for judgment as a matter of law, and (2) the defendants D.P. Realty, Inc., and Century 21 Realty separately appeal (a), as limited by their brief, from so much of the same interlocutory judgment as, upon a jury verdict on the issue of liability, finding them and the defendant Margaret Superty to be 60% at fault in the happening of the accident, is in favor of the plaintiff and against them on the issue of liability, and (b) from the same order which denied the motion of the defendant North Babylon Volunteer Fire Department pursuant to CPLR 4401 for judgment as a matter of law.

Ordered that the appeal by the defendant North Babylon Volunteer Fire Department from the order is dismissed as abandoned; and it is further,

Ordered that the appeal by the defendants D.P. Realty, Inc., and Century 21 Realty from the order is dismissed as those defendants are not aggrieved by the order appealed from (see, CPLR 5511); and it is further,

Ordered that the interlocutory judgment is affirmed insofar as appealed from; and it is further,

Ordered that the respondents are awarded one bill of costs payable by the appellants appearing separately and filing separate briefs.

The jury verdict was supported by sufficient evidence as a matter of law (see, Cohen v Hallmark Cards, 45 NY2d 493). Contrary to the appellants’ contentions, the jury verdict was based upon a fair interpretation of the evidence (see, Nicastro v Park, 113 AD2d 129).

The appellant North Babylon Volunteer Fire Department has not raised any arguments regarding the denial of its motion pursuant to CPLR 4401 for judgment as a matter of law. Thus, its appeal from the order is dismissed as abandoned (see, Matter of Anonymous v Grievance Com., for Second & Eleventh Judicial Dists., 136 AD2d 344, 349).

The appellants’ remaining contentions are without merit. Bracken, J. P., McGinity, Luciano and Feuerstein, JJ., concur. [See, 182 Misc 2d 480.]