| Grochowski v Fudella |
| 2010 NY Slip Op 01210 [70 AD3d 1407] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Lisa M. Grochowski, Respondent, v Jason P. Fudella,Appellant. |
—[*1] Cellino & Barnes, P.C., Buffalo (Gregory V. Pajak of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Nelson H. Cosgrove, J.H.O.),entered May 1, 2009 in a personal injury action. The order granted plaintiff's motion to set asidethe verdict and for a new trial.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen her vehicle was rear-ended by a vehicle driven by defendant. Following a summary jurytrial conducted pursuant to the parties' stipulation in accordance with "the Summary Jury TrialRules of the Eighth Judicial District," the jury found in favor of defendant. Defendant appealsfrom an order granting plaintiff's motion to set aside the verdict as against the weight of theevidence and for a new trial. We reject defendant's contention that Supreme Court violated theterms of the stipulation in determining the motion. "A stipulation between parties is anindependent contract subject to the principles of contract interpretation" (Matter of Black v New York State & LocalEmployees' Retirement Sys., 30 AD3d 920, 920 [2006]). Here, the parties stipulatedthat the issue of negligence would be submitted to the jury and that neither party would requestthe court to direct a verdict pursuant to CPLR 4401 on that issue. The stipulation is silent,however, with respect to motions to set aside the verdict as against the weight of the evidencepursuant to CPLR 4404, and thus the court properly concluded that the terms of the stipulationdo not evince the intent of plaintiff to forgo her right to move to set aside the verdict (see generally White v Winter, 28AD3d 1148 [2006]). Present—Scudder, P.J., Fahey, Lindley and Green, JJ.