Taylor v. Birdsong

• Decision Date: 09 February 2018
• Docket Number: 63,CA 17–00805
• Parties: Tamaica TAYLOR, Plaintiff–Appellant, v. Marcia BIRDSONG, Defendant, and David L. Vangalio, Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 1281

68 N.Y.S.3d 363 (Mem)

Tamaica TAYLOR, Plaintiff–Appellant,

v.Marcia BIRDSONG, Defendant,andDavid L. Vangalio, Defendants–Respondents.

63

CA 17–00805

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

Entered: February 9, 2018

FRANK S. FALZONE, BUFFALO, FOR PLAINTIFF–APPELLANT.

BARTH SULLIVAN BEHR, BUFFALO (DANIEL CARTWRIGHT OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.

PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.

MEMORANDUM AND ORDERMemorandum:

Plaintiff appeals from an order that denied her motion pursuant to CPLR 4404(a) to set aside a jury verdict and grant her a new trial on the issue whether she sustained a serious injury within the meaning of Insurance Law § 5102(d), and that granted defendant David L. Vangalio's motion for a directed verdict on the issue of Vangalio's negligence. We conclude that the appeal must be dismissed. Although the order on appeal was entered after entry of the final judgment, that order is subsumed in the judgment and there is no right to appeal directly therefrom (see Thoreson v. Penthouse Intl., 179 A.D.2d 29, 36, 583 N.Y.S.2d 213 [1st Dept. 1992], affd 80 N.Y.2d 490, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992], rearg. denied 81 N.Y.2d 835, 595 N.Y.S.2d 397, 611 N.E.2d 298 [1993] ; Paul Revere Life Ins. Co. v. Campagna, 233 A.D.2d 954, 955, 649 N.Y.S.2d 113 [4th Dept. 1996] ). We note that, even if we did not dismiss the appeal on that ground, we would be unable to address the merits of plaintiff's contentions on appeal inasmuch as the record does not include a full trial transcript (see Bouchey v. Claxton–Hepburn Med. Ctr., 117 A.D.3d 1216, 1216–1217, 984 N.Y.S.2d 698 [3d Dept. 2014] ; Kruseck v. Ross, 82 A.D.3d 939, 940, 918 N.Y.S.2d 727 [2d Dept. 2011] ; Mergl v. Mergl, 19 A.D.3d 1146, 1147, 796 N.Y.S.2d 823 [4th Dept. 2005] ).

It is hereby ORDERED that said appeal is unanimously dismissed without costs.