Levo v. Greenwald

Dec 17, 1985

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, on defendant’s appeal. Plaintiffs’ appeal should be dismissed on the ground that plaintiffs are not aggrieved by the order of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the Appellate Division (CPLR 5511).

Plaintiff Rocco Levo was part of a State Department of Transportation work crew engaged in repairing an exit ramp on the Northway when he was struck by an automobile operated by defendant. In a suit by plaintiff and his wife, defendant asserted a third-party claim against several of plaintiff’s co-workers, alleging that inadequate safety measures had been provided. That claim was discontinued against all ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍third-party defendants except the supervisor. The jury returned a verdict for plaintiffs, finding defendant wholly responsible and no cause of action against the third-party defendant.

On defendant’s motion pursuant to CPLR 4404 (a), the trial court in the exercise of its discretion set aside the verdict and ordered a new trial “in the interest of justice.” Third-party defendant, in support of his position that adequate safety measures had been provided, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍had at trial produced expert testimony of two Department of Transportation employees. In ordering a new trial, the trial court determined that it had erred by limiting cross-examination of those witnesses and refusing a requested charge, on issues going to their credibility. The Appellate Division reversed and denied the motion for a new trial, because it determined on its own review of the record that the issues were ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍already before the jury and the proposed additions to the record would have been merely cumulative on a collateral question of experts’ credibility.

Although the Appellate Division order recited that the reversal was “on the law,” the decision makes plain that the appellate court substituted its discretion for that of the trial court (Matter of Von Bulow, 63 NY2d 221, 225). In such circumstances, there is no question of law for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍our review (Brady v Ottaway Newspapers, 63 NY2d 1031; Gutin v Mascali & Sons, 11 NY2d 97).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.

*964On defendant’s appeal, order affirmed, with costs. Plaintiffs’ appeal dismissed.