Opinion
01-07337
Argued March 15, 2002
May 20, 2002.
In an action to recover damages for personal injuries, the defendant Daily News Distributing Corp. and the defendant third-party plaintiff Daily News, LP, appeal from a judgment of the Supreme Court, Kings County (Held, J.), dated March 23, 2001, which, upon the granting of the motion of the third-party defendant for judgment as a matter of law dismissing the third-party complaint, made at the close of the third-party plaintiff's proof, dismissed the third-party complaint.
Fiedelman McGaw, Jericho, N.Y. (Andrew Zajac of counsel), for defendant-appellant and defendant third-party plaintiff-appellant.
Motola Klar Dinowitz Carfora, LLP, New York, N.Y. (Courtney M. Robbins, Kevin F. Pinter, and Howard P. Klar of counsel), for third-party defendant-respondent.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, ROBERT W. SCHMIDT, BARRY A. COZIER, JJ.
ORDERED that the appeal by Daily News Distributing Corp. is dismissed, as it is not aggrieved by the judgment appealed from (see CPLR 5511); and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that the third-party defendant is awarded one bill of costs.
The Supreme Court properly awarded judgment to the third-party defendant at the close of the third-party plaintiff's proof since, viewing the evidence in the light most favorable to the third-party plaintiff, accepting all of its evidence as true, and resolving all credibility issues and inferences in its favor, the jury could not have found in its favor by any rational process (see CPLR 4401; Szczerbiak v. Pilat, 90 N.Y.2d 553; Schriber v. Melroe Company, 273 A.D.2d 650; cf. State Farm Ins. Co. v. Amana Refrig., 266 A.D.2d 372).
The parties' remaining contentions are either without merit or need not be reached in light of this determination.
FLORIO, J.P., S. MILLER, SCHMIDT and COZIER, JJ., concur.