Opinion
472 17–00917
04-27-2018
Elizabeth THORNTON, Plaintiff–Respondent, v. CITY OF ROCHESTER, Defendant–Appellant.
BRIAN F. CURRAN, CORPORATION COUNSEL, ROCHESTER (SPENCER L. ASH OF COUNSEL), FOR DEFENDANT–APPELLANT. KAMAN, BERLOVE, MARAFIOTI, JACOBSTEIN & GOLDMAN, LLP, ROCHESTER (RICHARD GLEN CURTIS OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
BRIAN F. CURRAN, CORPORATION COUNSEL, ROCHESTER (SPENCER L. ASH OF COUNSEL), FOR DEFENDANT–APPELLANT.
KAMAN, BERLOVE, MARAFIOTI, JACOBSTEIN & GOLDMAN, LLP, ROCHESTER (RICHARD GLEN CURTIS OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from an order that, among other things, denied that part of its motion seeking to set aside the jury verdict and to direct judgment in its favor pursuant to CPLR 4404(a). Inasmuch as the order is subsumed in the subsequently entered judgment, the appeal properly lies from the judgment (see CPLR 5501[a][1] ; Giorgione v. Gibaud, 147 A.D.3d 1448, 1448, 46 N.Y.S.3d 378 [4th Dept. 2017] ), but no appeal was taken therefrom. Although we may exercise our discretion to treat the notice of appeal as valid and deem the appeal as one taken from the judgment instead of the order (see CPLR 5520[c] ; Hughes v. Nussbaumer, Clarke & Velzy, 140 A.D.2d 988, 988, 529 N.Y.S.2d 658 [4th Dept. 1988] ), we decline to do so here.
It is hereby ORDERED that said appeal is unanimously dismissed without costs.