Vadala v. Carroll

59 N.Y.2d 751 (1983)

Paul D. Vadala et al., Appellants, v. Randall Carroll, Respondent.

Court of Appeals of the State of New York.

Decided May 11, 1983.

Craig P. Schlanger for appellant.

Francis Maloney, Jr., for respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS concur; Judge FUCHSBERG taking no part.

*752MEMORANDUM.

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 *753 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).

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.