Opinion
2012-02-16
Ricky D. WEST, et al., Appellants–Respondents, v. Mark HOGAN et al., Respondents–Appellants.(And a Third–Party Action.).
Reported below, 88 A.D.3d 1247, 930 N.Y.S.2d 708.
On the Court's own motion, appeal by defendants dismissed, without costs, upon the ground that the Appellate Division order appealed from does not finally determine the action within the meaning of the Constitution. Motion by plaintiffs for leave to appeal dismissed upon the ground that the Appellate Division order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Plaintiffs' stipulation to a reduction in damages as an alternative to a new trial is invalid under the circumstances of this case and leaves the action pending for a new trial. Plaintiffs stipulated to the reduced amount in lieu of a new trial on punitive damages, purporting to reserve a right to challenge the stipulated amount of damages on appeal. By operation of law, plaintiffs cannot so provide. A stipulation in such circumstances makes the damage award nonappealable by plaintiffs ( see Dudley v. Perkins, 235 N.Y. 448, 457, 139 N.E. 570 [1923] ). Thus, under these circumstances, plaintiffs' stipulation must be rejected. Either a new unconditional stipulation by plaintiffs accepting the reduced damage award must be filed or the parties *562 must proceed to a new trial on punitive damages.