Ciatto v. Lieberman

• Decision Date: 29 November 1999
• Citation: 698 N.Y.S.2d 54,266 A.D.2d 494
• Parties: Lourdes CIATTO, et al., appellants-respondents, v. Paul LIEBERMAN, et al., defendants-respondents, Bast Chevrolet, respondent-appellant.
• Court: New York Supreme Court — Appellate Division

Page 54

698 N.Y.S.2d 54

Lourdes CIATTO, et al., appellants-respondents, v. Paul LIEBERMAN, et al., defendants-respondents Bast Chevrolet, respondent-appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 29, 1999.

White, Quinlan, Staley & Ledwith, Garden City, N.Y. (Lorin A. Donnelly and Michael W. Butler of counsel), for respondent-appellant.

Peter T. Connor, Mineola, N.Y., for defendants-respondents.

LAWRENCE J. BRACKEN, J.P., DANIEL W. JOY, GLORIA GOLDSTEIN and DANIEL F. LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Suffolk County (Jones, J.), dated July 23, 1998, as denied their motion pursuant to CPLR 4404 to set aside a jury verdict in favor of the defendants on the issue of liability and for judgment as a matter of law, and (2) a judgment of the same court, dated July 23, 1998, which is in favor of the defendants and against them, and the defendant Bast Chevrolet cross-appeals from so much of the order as denied its motion for judgment as a matter of law pursuant to CPLR 4401.

ORDERED that the appeal and cross appeal from the order are dismissed; and it is further,

ORDERED that the judgment is reversed, on the law, and the plaintiffs' motion is granted to the extent that the verdict is set aside and they are granted a new trial and is otherwise denied; and it is further,

ORDERED that one bill of costs is awarded to abide the event.

The appeal from the intermediate 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 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). 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] ). The cross appeal of Bast Chevrolet (hereinafter Bast) from the intermediate order must be dismissed because it is not aggrieved by the order (see, CPLR 5511). However, on the plaintiffs' appeal from the judgment, Bast may raise, as an alternative ground for affirmance, the argument that it cannot be held vicariously liable to the plaintiffs as a matter of law (see, Parochial Bus Systems v. Bd. of Educ., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241; Merz v. Seaman, --- A.D.2d ----, 697 N.Y.S.2d 290).

The vehicle driven by the defendant Paul Lieberman, while making a left turn, struck the plaintiffs' vehicle, which was proceeding straight through the intersection of South...