Opinion
June 16, 2000.
Appeal from Judgment of Supreme Court, Erie County, Burns, J. — Negligence.
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT AND LAWTON, JJ.
Judgment unanimously affirmed without costs. Memorandum: Because plaintiff did not accept payment or the benefits of the judgment, his appeal from the judgment is not precluded ( see, Kriesel v. May Dept. Stores Co., 261 A.D.2d 837; see also, Cornell v. T.V. Dev. Corp., 17 N.Y.2d 69, 73). Contrary to plaintiff's contention, however, the jury's award of damages does not deviate materially from what would be reasonable compensation ( see, CPLR 5501 [c]; Banks v. Lindenbaum, 201 A.D.2d 523).