O'Brien v. Covert
| Decision Date | 02 November 1992 |
| Citation | 589 N.Y.S.2d 543,187 A.D.2d 419 |
| Parties | Patrick O'BRIEN, etc., Respondent, v. Keith COVERT, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Keogh, Keogh & Corrigan, New Rochelle (Edward V. Corrigan, of counsel), for appellants.
Keegan, Keegan & Associates, White Plains (Barry R. Strutt, of counsel), for respondent.
Before MANGANO, P.J., and SULLIVAN, BALLETTA and MILLER, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, etc., the defendants appeal from (1) an order of the Supreme Court, Westchester County (Marbach, J.), entered November 1, 1989, which granted the motion of the plaintiff to set aside the verdict as to damages unless the defendants stipulated to increase the damages award from $82,500 to $142,000 (see, CPLR 4404[a], and (2) a judgment of the same court (Walsh, J.), entered July 5, 1990, which, upon a jury verdict after a new trial as to damages, is in favor of the plaintiff and against the defendants in the principal sum of $200,000.
ORDERED that the plaintiff is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1].
Stephen O'Brien, a 17-year-old high school senior, sustained, inter alia, permanent and severe facial scarring when he was struck by an automobile driven recklessly by the defendant Keith Covert. Keith Covert thereafter pleaded guilty to assault in the second degree (Penal Law § 120.05[4]. At the first trial of this action, which was both on the issues of liability and damages, the trial court granted the plaintiff judgment as a matter of law, and the jury awarded the principal sum of $82,500. The plaintiff thereafter moved pursuant to CPLR 4404(a) to set aside the verdict as inadequate, and the trial court granted a new trial as to damages unless the defendants consented to pay an increased award of $142,500. The defendants refused these terms, and a second trial on the issues of damages was held. At the second trial, the jury awarded Stephen O'Brien the principal sum of $200,000 for his past and future pain and suffering.
We find unpersuasive the defendants' contention that the court erred in awarding the plaintiff judgment as a matter of law. As we have previously observed, "[i]n considering a motion for a directed verdict, a court is not to engage in a weighing of the evidence, but instead must determine that by no rational process could the trier of facts find for the nonmoving party * * * The court must also take the view of the evidence that is most favorable to the nonmoving party * * * and the motion should not be...
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