Barbagallo v. F & H Sanitation, Inc.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Nastasi, J.), entered May 13, 1999, which denied their motion pursuant to CPLR 4404 (a) to set aside the jury verdict on liability as against the weight of the evidence and for a new trial, and (2) a judgment of the same court entered November 15, 1999, which is in favor of the defendants and against them, dismissing the complaint. 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 defendants are awarded one bill of costs. The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with [425] 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’ contentions on appeal, the jury verdict in favor of the defendants and against the plaintiffs on the issue of liability was not against the weight of the evidence (see, Dame v Hanly, 16 AD2d 997; Nicastro v Park, 113 AD2d 129). The plaintiffs’ remaining contentions are without merit. Ritter, J. P., Sullivan, Florio and Feuerstein, JJ., concur.