        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

628
CA 14-01828
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


JAMES P. RENDER,
PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

FRANK J. GIZZO, JR.,
DEFENDANT-APPELLANT-RESPONDENT.


LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (DANIEL J. GUARASCI OF
COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.

GELBER & O’CONNELL, LLC, AMHERST (KRISTOPHER A. SCHWARZMUELLER OF
COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (John A. Michalek, J.), entered June 26, 2014. The order
denied those parts of the motion of plaintiff seeking an additur,
judgment notwithstanding the verdict and to set aside the verdict as
against the weight of the evidence, granted that part of the motion
seeking to set aside the verdict as inconsistent and ordered a new
trial on proximate cause, serious injury and damages.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
personal injuries he sustained in a motor vehicle accident, and the
matter proceeded to trial. The jury returned a verdict in plaintiff’s
favor, finding that plaintiff sustained a serious injury under the
90/180-day category of serious injury within the meaning of Insurance
Law § 5102 (d). The jury awarded plaintiff damages for past pain and
suffering and future medical expenses but declined to award damages
for future pain and suffering. After the jury rendered its verdict,
Supreme Court directed the parties to submit any motions later, and
discharged the jury. Supreme Court granted plaintiff’s posttrial
motion to set aside the verdict insofar as plaintiff contended that
the verdict was inconsistent, and ordered a new trial on the issues of
proximate cause, serious injury, and damages. Defendant appeals from
that part of the order, and plaintiff cross-appeals to the extent that
the order denied those parts of the motion seeking an additur, an
order granting judgment notwithstanding the verdict, and an order
setting aside the verdict as against the weight of the evidence. We
affirm.
                                 -2-                           628
                                                         CA 14-01828

     Contrary to defendant’s contention on appeal, the court properly
granted that part of the motion seeking to set aside the verdict as
inconsistent. We note that, inasmuch as the court’s postverdict
direction to the parties prevented plaintiff from making a motion
before the court discharged the jury, the court properly determined
that “ ‘the disbanding of the jury without . . . objection . . .
obliterate[s] neither [the] right to seek a new trial[ ] nor the
court’s capacity to grant it[ ] where[, as here,] the interest of
justice manifestly requires it’ ” (Applebee v County of Cayuga [appeal
No. 1], 103 AD3d 1267, 1269; see Califano v Automotive Rentals, 293
AD2d 436, 437; Kim v Cippola, 231 AD2d 886, 886-887; see also
Dessasore v New York City Hous. Auth., 70 AD3d 440, 441). Contrary to
defendant’s further contention, the court properly concluded that the
verdict was irreconcilable (see generally Allen v Lowczus, 118 AD3d
1258, 1258-1259; Applebee, 103 AD3d at 1268; Campopiano v Volcko, 82
AD3d 1587, 1589).

     Plaintiff contends on cross appeal that the court erred in
denying the motion insofar as it sought an additur, an order granting
judgment notwithstanding the verdict, and an order setting aside the
verdict as against the weight of the evidence. “We are unable to
review [those] contention[s], however, because plaintiff[] failed to
submit a [complete] transcript” of the trial testimony (Yoonessi v
Givens, 78 AD3d 1622, 1623, lv denied 17 NY3d 718; see generally Lewis
v Lewis, 194 AD2d 648, 650; Usyk v Track Side Blazers, 182 AD2d 1125,
1125-1126). Furthermore, plaintiff’s “references to a supplemental
record are improper, no motion for enlargement of the record having
been made” (Mane v Brusco, 280 AD2d 436, 437; see Smith v Woods
Constr. Co., 309 AD2d 1155, 1157).

     Finally, we note that plaintiff’s further contention on his cross
appeal regarding the court’s denial of his motion for a directed
verdict is not before us because the order on appeal does not resolve
any such motion. Furthermore, it appears that no order was entered on
such a motion but, rather, plaintiff’s motion was apparently denied in
a bench decision during the trial, and it is well settled that “[n]o
appeal lies from a mere decision” (Kuhn v Kuhn, 129 AD2d 967, 967; see
Gay v Gay [appeal No. 1], 118 AD3d 1331, 1332).




Entered:   June 12, 2015                       Frances E. Cafarell
                                               Clerk of the Court
