Pecora v. Lawrence, CA 05-02144.
| Citation | 2006 NY Slip Op 03241,28 A.D.3d 1136,816 N.Y.S.2d 772 |
| Decision Date | 28 April 2006 |
| Docket Number | CA 05-02144. |
| Parties | JOANN M. PECORA, Respondent, v. MARSHALL E. LAWRENCE et al., Appellants. (Appeal No. 1.). |
| Court | New York Supreme Court — Appellate Division |
Appeal from an order of the Supreme Court, Monroe County (William P. Polito, J.), entered December 20, 2004 in a personal injury action. The order granted plaintiff's motion for a directed verdict on the issue of significant disfigurement (see Insurance Law § 5102 [d]).
It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is denied.
Plaintiff commenced this action seeking damages for injuries she sustained when the vehicle she was operating was struck by a vehicle operated by defendant Marshall E. Lawrence and owned by defendant American Stainless Corporation. Defendants conceded that they were at fault for the accident, and a trial was conducted on the issues of serious injury and damages. Plaintiff presented evidence establishing that she suffered severe lacerations to her left ear that left some scarring and made plaintiff self-conscious about the appearance of her ear. The jury was given the opportunity to view plaintiff's ear, and photographs of plaintiff's ear were received in evidence at trial. At the close of evidence, plaintiff moved for a directed verdict on the issue whether she sustained a significant disfigurement (see Insurance Law § 5102 [d]). Supreme Court reserved decision on the motion but, after the jury returned a verdict finding that plaintiff did not sustain either a significant disfigurement or a permanent consequential limitation of use of a body organ or member, the court granted plaintiff's motion for a directed verdict on the issue of significant disfigurement "based upon the initial tearing away of a portion of plaintiff's ear at the time of the accident." In appeal No. 1, defendants appeal from the order granting that motion.
Plaintiff also moved for an order setting aside the verdict and directing judgment as a matter of law on the issue whether she sustained a permanent consequential limitation of use of a body organ or member or, in the alternative, a new trial on that issue on the ground that the verdict was contrary to the weight of the evidence. The court, however, did not rule on that motion but instead wrote that, "[i]n light of the court's determination of a significant disfigurement as a mat[t]er of law, the motions [sic] are moot." The court then issued an advisory decision on what it would have done "if [it] were to rule." At the conclusion of that advisory decision, the court wrote that "[t]his shall constitute the decision and order of the Court." In appeal No. 2, defendants purport to appeal from that document.
With respect to appeal No. 1, we conclude that the court erred in granting plaintiff's motion for a directed verdict on the issue of significant disfigurement. In order to direct a verdict in favor of the plaintiff, the court must view the evidence in the light most favorable to ...
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...appeals from the court's "[d]ecision and [o]rder," that document is only a decision from which no appeal lies ( see Pecora v. Lawrence, 28 A.D.3d 1136, 1137, 816 N.Y.S.2d 772). We nevertheless exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from t......
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Workman v. Dumouchel
...within a reasonable period of time (see Forster v. Novic, 127 A.D.3d 605, 605, 5 N.Y.S.3d 869 [1st Dept. 2015] ; Pecora v. Lawrence, 28 A.D.3d 1136, 1137, 816 N.Y.S.2d 772 [4th Dept. 2006] ; Wiegand v. Schunck, 294 A.D.2d 839, 839, 741 N.Y.S.2d 360 [4th Dept. 2002] ; cf. Feutcher v. Composi......
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Marrow v. State
...claimant appeals from a decision dismissing her claim after a nonjury trial, but no appeal lies from a decision ( see Pecora v. Lawrence, 28 A.D.3d 1136, 1137, 816 N.Y.S.2d 772). We exercise our discretion, however, to treat the notice of appeal as valid and deem the appeal as taken from th......