Martin A. McIntosh v City of New York

McIntosh v City of New York 2004 NY Slip Op 09269 [13 AD3d 421] December 13, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Martin A. McIntosh et al., Appellants,
v
City of New York et al., Respondents.

—[*1]In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Richmond County (Ponterio, J.), dated June 18, 2003, which, upon a jury verdict, is in favor of the defendants and against them, dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

Contrary to the plaintiffs' contentions, the verdict was not against the weight of the evidence. A jury verdict in favor of a defendant should not be set aside unless "the jury could not have reached its verdict on any fair interpretation of the evidence" (Delgado v Board of Educ. of Union Free School Dist. No. 1 of Towns of Greenburgh & Mt. Pleasant, 65 AD2d 547 [1978], affd 48 NY2d 643 [1979]; see Hersh v Diekmann, 264 AD2d 815, 816 [1999]; Nicastro v Park, 113 AD2d 129, 134 [1985]). A fair basis existed for the verdict in the defendants' favor.

The plaintiffs' contentions concerning alleged defects in the jury charge and the verdict sheet are unpreserved for appellate review (see CPLR 4017, 4110-b, 5501 [a] [3]; De Long v County of Erie, 60 NY2d 296, 306 [1983]; Laboda v VJV Dev. Corp., 296 AD2d 441 [2002]; Surjnarine v Brathwaite, 290 AD2d 436 [2002]; Schmidt v Buffalo Gen. Hosp., 278 AD2d 827, 828 [2000]). In any event, the errors, if any, were not so fundamental in nature as to warrant a new trial (see Schmidt v Buffalo Gen. [*2]Hosp., supra; Pagnella v Action for a Better Community, 57 AD2d 1076 [1977]; cf. Caceres v New York City Health & Hosps. Corp., 74 AD2d 619, 620 [1980]). Smith, J.P., Luciano, Crane and Rivera, JJ., concur.