Opinion
2015-06-12
James P. RENDER, Plaintiff–Respondent–Appellant, v. Frank J. GIZZO, Jr., Defendant–Appellant–Respondent.
Law Office of Daniel R. Archilla, Buffalo (Daniel J. Guarasci of Counsel), for Defendant–Appellant–Respondent. Gelber & O'Connell, LLC, Amherst (Kristopher A. Schwarzmueller of Counsel), for Plaintiff–Respondent–Appellant.
Law Office of Daniel R. Archilla, Buffalo (Daniel J. Guarasci of Counsel), for Defendant–Appellant–Respondent. Gelber & O'Connell, LLC, Amherst (Kristopher A. Schwarzmueller of Counsel), for Plaintiff–Respondent–Appellant.
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for personal injuries he sustained in a motor vehicle accident, and the matter proceeded to trial. The jury returned a verdict in plaintiff's favor, finding that plaintiff sustained a serious injury under the 90/180–day category of serious injury within the meaning of Insurance Law § 5102(d). The jury awarded plaintiff damages for past pain and suffering and future medical expenses but declined to award damages for future pain and suffering. After the jury rendered its verdict, Supreme Court directed the parties to submit any motions later, and discharged the jury. Supreme Court granted plaintiff's posttrial motion to set aside the verdict insofar as plaintiff contended that the verdict was inconsistent, and ordered a new trial on the issues of proximate cause, serious injury, and damages. Defendant appeals from that part of the order, and plaintiff cross-appeals to the extent that the order denied those parts of the motion seeking an additur, an order granting judgment notwithstanding the verdict, and an order setting aside the verdict as against the weight of the evidence. We affirm.
Contrary to defendant's contention on appeal, the court properly granted that part of the motion seeking to set aside the verdict as inconsistent. We note that, inasmuch as the court's postverdict direction to the parties prevented plaintiff from making a motion before the court discharged the jury, the court properly determined that “ ‘the disbanding of the jury without ... objection ... obliterate[s] neither [the] right to seek a new trial[ ] nor the court's capacity to grant it[ ] where[, as here,] the interest of justice manifestly requires it’ ” ( Applebee v. County of Cayuga [Appeal No. 1], 103 A.D.3d 1267, 1269, 962 N.Y.S.2d 533; see Califano v. Automotive Rentals, 293 A.D.2d 436, 437, 740 N.Y.S.2d 117; Kim v. Cippola, 231 A.D.2d 886, 886–887, 647 N.Y.S.2d 596; see also Dessasore v. New York City Hous. Auth., 70 A.D.3d 440, 441, 895 N.Y.S.2d 44). Contrary to defendant's further contention, the court properly concluded that the verdict was irreconcilable ( see generally Allen v. Lowczus, 118 A.D.3d 1258, 1258–1259, 988 N.Y.S.2d 350; Applebee, 103 A.D.3d at 1268, 962 N.Y.S.2d 533; Campopiano v. Volcko, 82 A.D.3d 1587, 1589, 920 N.Y.S.2d 492).
Plaintiff contends on cross appeal that the court erred in denying the motion insofar as it sought an additur, an order granting judgment notwithstanding the verdict, and an order setting aside the verdict as against the weight of the evidence. “We are unable to review [those] contention[s], however, because plaintiff[ ] failed to submit a [complete] transcript” of the trial testimony ( Yoonessi v. Givens, 78 A.D.3d 1622, 1623, 910 N.Y.S.2d 801, lv. denied 17 N.Y.3d 718, 2011 WL 5839697; see generally Lewis v. Lewis, 194 A.D.2d 648, 650, 599 N.Y.S.2d 606; Usyk v. Track Side Blazers, 182 A.D.2d 1125, 1125–1126, 586 N.Y.S.2d 773). Furthermore, plaintiff's “references to a supplemental record are improper, no motion for enlargement of the record having been made” ( Mane v. Brusco, 280 A.D.2d 436, 437, 721 N.Y.S.2d 620; see Smith v. Woods Constr. Co., 309 A.D.2d 1155, 1157, 764 N.Y.S.2d 749).
Finally, we note that plaintiff's further contention on his cross appeal regarding the court's denial of his motion for a directed verdict is not before us because the order on appeal does not resolve any such motion. Furthermore, it appears that no order was entered on such a motion but, rather, plaintiff's motion was apparently denied in a bench decision during the trial, and it is well settled that “[n]o appeal lies from a mere decision” ( Kuhn v. Kuhn, 129 A.D.2d 967, 967, 514 N.Y.S.2d 284; see Gay v. Gay [Appeal No. 1], 118 A.D.3d 1331, 1332, 987 N.Y.S.2d 740).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.