34-35 Corp. v. Industry City Associates

In an action to recover for damage to property, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Schneier, J.), entered April 1, 2003, which, upon a jury verdict, is in favor of the defendants and against it, dismissing the complaint. Ordered that the judgment is affirmed, with one bill of costs. The plaintiffs contention that the Supreme Court’s instructions to the jury violated the terms of a stipulation previously placed on the record by the parties in open court is unpreserved for appellate review, since the plaintiff failed to object to the charge as given (see generally Harris v Armstrong, 64 NY2d 700 [1984]; Rock v City of New York, 294 AD2d 480 [2002]; Musmacker v Garwood, 51 AD2d 1006 [1976]). In any event, the plaintiff’s contention is without merit. Considering the record as a whole, and given the conduct of the plaintiffs counsel throughout the entire trial (see Argento v Argento, 304 AD2d 684 [2003]; Nishman v De Marco, 76 AD2d 360, 366 [1980]), it is clear that the trial court and counsel for all of the parties interpreted the stipulation to mean that the plaintiff’s potential recovery would be fixed at $125,000, but that the plaintiff would still be obligated to prove negligence on the part of the defendants as a prerequisite to that recovery (see generally Mandia v King Lbr. & Plywood Co., 179 AD2d 150, 158 [1992]; Nishman v De Marco, supra). Accordingly, the trial court’s submission of the negligence issue to the jury did not violate the terms of the stipulation. Smith, J.P., Crane, Mastro and Skelos, JJ., concur.