Opinion
Decided May 11, 1983
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, THOMAS J. MURPHY, J.
Craig P. Schlanger for appellant.
Francis Maloney, Jr., for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
The Appellate Division's determination that it was error to have set aside the verdict as against the weight of the evidence, although appealable, is beyond the scope of our review ( Aiello v Garahan, 58 N.Y.2d 1078; Mongelli Carting Co. v Nassau Ins. Co., 57 N.Y.2d 649; Gutin v Mascali Sons, 11 N.Y.2d 97; see Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 148, p 588). Due to the posture in which this case comes before us, there must be an automatic affirmance ( Goehle v Town of Smithtown, 55 N.Y.2d 995; Rochester Tel. Corp. v Green Is. Constr. Corp., 51 N.Y.2d 788; Pfohl v Wipperman, 34 N.Y.2d 597).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS concur; Judge FUCHSBERG taking no part.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order affirmed, with costs, in a memorandum.