Opinion
CA 04-01350.
April 28, 2006.
Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered March 16, 2004 in a personal injury action. The order and judgment, among other things, granted plaintiff judgment in the sum of $32,154.19 with interest.
BOUVIER PARTNERSHIP, LLP, BUFFALO (RAFAEL O. GOMEZ OF COUNSEL), FOR DEFENDANT-APPELLANT.
GROSS, SHUMAN, BRIZDLE GILFILLAN, P.C., BUFFALO (DAVID H. ELIBOL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Pigott, Jr., P.J., Hurlbutt, Martoche, Smith and Pine, JJ.
It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs.
Memorandum: Defendant appeals from an order and judgment entered following a summary jury trial. Defendant contends on appeal that Supreme Court erred in ruling on plaintiff's motion for a directed verdict pursuant to CPLR 4401 and further erred in granting the motion, determining that plaintiff had sustained a serious injury within the meaning of Insurance Law § 5102 (d) under the 90/180 category. In stipulating to a summary jury trial disposition of the matter, the parties further stipulated that there would "be no appeal from it." We therefore dismiss the appeal.
Were we to reach the merits of the appeal, we would reject defendant's contention that the court erred in ruling on plaintiff's motion for a directed verdict. The parties' stipulation does not address CPLR 4401 motions, and the Judge's Bench Manual for the Eighth Judicial District's Summary Jury Trial Program contains no provision precluding the court from ruling on such a motion. With respect to defendant's contention that the court erred on the merits in granting plaintiff's motion, we note that the parties also stipulated to dispense with a transcript of the summary jury trial. Thus, even if defendant's contention were properly before us, we would be unable to review it in the absence of a transcript.