Opinion
00-08200, 01-03997
Argued April 22, 2002
May 20, 2002.
In an action to recover damages for personal injuries, the defendant City of Yonkers appeals from (1) an order of the Supreme Court, Westchester County (Colabella, J.), dated July 25, 2000, which, after a jury trial, denied its motion pursuant to CPLR 4404(a) to set aside the verdict and direct that judgment be entered in its favor, and (2) a judgment of the same court, entered September 27, 2000, which is in favor of the plaintiff and against it in the principal sum of $200,000.
William M. Mooney III, Corporation Counsel, Yonkers, N.Y. (Rory McCormick of counsel), for appellant.
Cascione, Purcigliotti Galluzzi, P.C. (Mischel, Neuman Horn, P.C., New York, N.Y. [Scott T. Horn] of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, JJ.
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 the plaintiff is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248). 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]).
Contrary to the appellant's contention, the trial court properly denied its motion pursuant to CPLR 4404(a) to set aside the verdict and direct that judgment be entered in its favor. The photographs and other evidence in the record demonstrate that the issue of whether the sidewalk defect in question was "trivial" and hence non-actionable, was for the jury (see McKenzie v. Crossroads Arena, 291 A.D.2d 860; Santulli v. City of New York, 287 A.D.2d 352; Cela v. Goodyear Tire Rubber Co., 286 A.D.2d 640; Adsmond v. City of Poughkeepsie, 283 A.D.2d 598; Denmark v. Wal-Mart Stores, 266 A.D.2d 776).
The appellant's remaining contentions are without merit.
SANTUCCI, J.P., S. MILLER, KRAUSMAN and GOLDSTEIN, JJ., concur.