
    James R. Robertson, Appellant, v Spectrum Applications, Inc., Respondent.
    (Appeal No. 1.)
    [710 NYS2d 293]
   Judgment unanimously affirmed without costs. Memorandum: Because plaintiff did not accept payment or the benefits of the judgment, his appeal from the judgment is not precluded (see, Kriesel v May Dept. Stores Co., 261 AD2d 837; see also, Cornell v T. V. Dev. Corp., 17 NY2d 69, 73). Contrary to plaintiffs contention, however, the jury’s award of damages does not deviate materially from what would be reasonable compensation (see, CPLR 5501 [c]; Banks v Lindenbaum, 201 AD2d 523). (Appeal from Judgment of Supreme Court, Erie County, Burns, J. — Negligence.) Present — Pigott, Jr., P. J., Pine, Hurlbutt and Lawton, JJ.  