Opinion
6752 Index 26099/02
05-31-2018
Ian FRANK, Plaintiff–Appellant, v. CITY OF NEW YORK, Defendant–Respondent.
John De Maio, New York, for appellant. Zachary W. Carter, Corporation Counsel, New York (Jason Anton of counsel), for respondent.
John De Maio, New York, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Jason Anton of counsel), for respondent.
Sweeny, J.P., Richter, Andrias, Kahn, Moulton, JJ.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered January 14, 2016, which denied plaintiff's motion pursuant to CPLR 4401 and 4404(a) to set aside the jury verdict and enter judgment for plaintiff on his cause of action for false arrest, or, alternatively, for a new trial, unanimously affirmed, without costs.
Since plaintiff appealed only from the order denying his CPLR 4404 motion to set aside the verdict (rather than from a judgment), he has irretrievably waived arguments not raised therein, including his arguments that the jury verdict was inconsistent, and that the trial court erred in barring plaintiff from seeing to recover lost earnings (see CPLR 5515[1] ; City of Mount Vernon v. Mount Vernon Hous. Auth., 235 A.D.2d 516, 516–517, 652 N.Y.S.2d 771 [2d Dept. 1997] ; Beauchamp v. Riverbay Corp., 156 A.D.2d 172, 172, 548 N.Y.S.2d 215 [1st Dept. 1989] ).
As to those issues which we have jurisdiction to entertain, we find that Supreme Court properly denied plaintiff's posttrial motion as defective, on account of his failure to annex the trial transcript, or relevant portions thereof. Given especially that plaintiff primarily seeks to set aside the verdict as against the weight of the evidence, "the absence of a transcript, or relevant portions thereof, precluded a meaningful review" ( Gorbea v. DeCohen, 118 A.D.3d 548, 549, 987 N.Y.S.2d 152 [1st Dept. 2014] ). Were we to consider plaintiff's remaining arguments not to be jurisdictionally foreclosed, we would find them to be without merit.