Jamal v. Gohel

In an action to recover damages for wrongful death, the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated March 18, 2004, as, upon a jury verdict finding the defendant 51% at fault in the happening of the accident and awarding them the sum of $400,000 for past pecuniary loss and $0 for future pecuniary *588loss, denied that branch of their motion pursuant to CPLR 4404 (a) which was to set aside the verdict as to damages for future pecuniary loss as against the weight of the evidence and to grant a new trial on that issue and (2), as limited by their notice of appeal and brief, from so much of a judgment of the same court dated October 18, 2004, as awarded them $0 for future pecuniary loss, and the defendant cross-appeals from the order dated March 18, 2004.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the cross appeal is dismissed as abandoned (see 22 NYCRR 670.8 [c], [e]); and it is further,

Ordered that the judgment is affirmed insofar as appealed from, without costs or disbursements.

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 NY2d 241, 248 [1976]). The issues raised on the 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 plaintiffs’ contention that the verdict as to damages was inconsistent is unpreserved for appellate review because they failed to object to the verdict on that ground prior to the discharge of the jury (see Barry v Manglass, 55 NY2d 803, 806 [1981]; Sukhoo v City of New York, 1 AD3d 349 [2003]; Delacruz v Galaxy Elecs., 300 AD2d 278 [2002]).

Under the particular facts of this case, the verdict was not against the weight of the evidence (see Nicastro v Park, 113 AD2d 129 [1985]). Schmidt, J.P., Mastro, Spolzino and Covello, JJ., concur.