Opinion
July 28, 1997
Appeal from the Supreme Court, Kings County (Vaccaro, J.).
Ordered that the order is affirmed, with costs.
A motion pursuant to CPLR 4404 to set aside a jury verdict and for judgment as a matter of law must be based upon the trial proceedings. Since the plaintiff's motion was based upon an event which occurred prior to the trial, there was no basis upon which the Supreme Court could grant the motion (see, Kozlowski v. City of Amersterdam, 111 A.D.2d 476; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4404:2, at 460-461; Siegel, N.Y. Prac § 408, at 618 [2d ed]). We therefore find that the motion was properly denied, although for a different reason than that stated by the Supreme Court. In making this determination we make no finding as to whether or not the plaintiff's claims may properly be reviewed upon a timely direct appeal from any judgment entered in this action.
Miller, J. P., croy, Goldstein and Florio, JJ., concur.