Pennell v. Coleton

In an action to recover damages for dental malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Rudolph, J.), entered November 4, 1996, which denied her motion pursuant to CPLR 4404 (a) to set aside the jury verdict on the issue of liability and direct a verdict in her favor or a new trial, and (2) a [600] judgment of the same court dated January 6, 1997, in favor of the defendant dismissing the action. Ordered that the appeal from the order is dismissed; and it is further, Ordered that the judgment is affirmed; and it is further, Ordered that the defendant is awarded one bill of costs. The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]). Contrary to the plaintiffs contention, the Supreme Court correctly denied her motion to set aside the verdict pursuant to CPLR 4404 (a). The jury could have reached its determination on a fair interpretation of the evidence presented with consideration given to the credibility of the witnesses and the drawing of reasonable inferences therefrom (see, Cohen v Hallmark Cards, 45 NY2d 493; Pomaro v McKeon, 228 AD2d 572; Nicastro v Park, 113 AD2d 129; Harris v Armstrong, 97 AD2d 947). Rosenblatt, J. P., Miller, Ritter and Krausman, JJ., concur.