OPINION OF THE COURT
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 (Mongelli Carting Co. v Nassau Ins. Co., 57 NY2d 649; Rudes v Walrath, 56 NY2d 703; Noia v De Rosa, 54 NY2d 631; Gutin v Mascali & Sons, 11 NY2d 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 NY2d 995; Rochester Tel. Corp. v Green Is. Constr. Corp., 51 NY2d 788; Pfohl v Wipperman, 34 NY2d 597).
Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur.
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.