Harrington v. Halpert

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaccaro, J.), dated July 10, 1996, which denied his motion to set aside a jury verdict and for judgment as a matter of law in his favor. Ordered that the order is affirmed, with costs. A motion pursuant to CPLR 4404 to set aside a jury verdict and for judgment as a matter of law must be based upon the trial proceedings. Since the plaintiff’s motion was based upon an event which occurred prior to the trial, there was no basis 541 upon which the Supreme Court could grant the motion (see, Kozlowski v City of Amersterdam, 111 AD2d 476; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C4404:2, at 460-461; Siegel, NY Prac § 408, at 618 [2d ed]). We therefore find that the motion was properly denied, although for a different reason than that stated by the Supreme Court. In making this determination we make no finding as to whether or not the plaintiff’s claims may properly be reviewed upon a timely direct appeal from any judgment entered in this action. Miller, J. P., Joy, Goldstein and Florio, JJ., concur.