Opinion
Argued March 27, 2000.
May 17, 2000.
In an action to recover damages for personal injuries, etc., the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated June 12, 1998, as, in effect, denied his motion pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence, and (2) from a judgment of the same court, entered December 9, 1998, which, upon a jury verdict, is in favor of the defendants and against him dismissing the complaint.
Jaspan Schlesinger Hoffman, LLP, Garden City, N Y (Stanley Harwood and Scott B. Fisher of counsel), and Joachim, Flanzig, Frommer, Beasley Madigan, Mineola, N.Y. (Edward B. Joachim of counsel), for appellant (one brief filed).
Martin, Clearwater Bell, New York, N.Y. (Lisa Mudd, Jay W. Levy, and Patricia D'Alvia of counsel), for respondent Victory Memorial Hospital.
Frank Composto, New York, N.Y. (Leahey Johnson, P.C. [Peter James Johnson, Jr., and James P. Tenney] of counsel), for respondent Martin Weseley.
Marulli, Pewarski Heubel, P.C., New York, N.Y. (Gerard J. Marulli and Richard O. Mannarino of counsel), for respondent J.J. Modi.
Before: LAWRENCE J. BRACKEN, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN, GABRIEL M. KRAUSMAN, JJ.
DECISION ORDER
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1]).
The Supreme Court properly denied the plaintiff's motion to set aside the verdict as against the weight of the evidence. A jury verdict may not be set aside as against the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence (see, Torres v. City of New York, 259 A.D.2d 693; Nicastro v. Park, 113 A.D.2d 129). Here, the jury was presented with conflicting testimony and divergent expert opinions, the resolution of which was the jury's proper function (see, Mendoza v. Kaplowitz, 215 A.D.2d 735; Panneta v. Ramo, 138 A.D.2d 686; Norfleet v. New York City Tr. Auth., 124 A.D.2d 715, 716). Since the verdict was supported by a fair interpretation of the evidence, it should not be disturbed.
The plaintiff's remaining contentions are either unpreserved for appellate review, without merit, or do not warrant reversal (see, CPLR 2002).
BRACKEN, J.P., SULLIVAN, ALTMAN and KRAUSMAN, JJ., concur.