Schlesinger v. City of New York

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a [401] judgment of the Supreme Court, Queens County (McDonald, J.), entered October 26, 2004, 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. The plaintiffs’ contention that the trial court erred in its charge to the jury and its phrasing of the verdict sheet because the charge and verdict sheet made it appear as if they had to prove that both defendants had actual or constructive notice of the alleged defect is unpreserved for appellate review, and we decline to reach the argument in the exercise of our discretion (see Yung Wong v Negron, 294 AD2d 358 [2002]; Altman v Fortune Brands, 268 AD2d 231, 231-232 [2000]; cf. Casiero v Stamer, 308 AD2d 499, 500 [2003]). The plaintiffs objected to the charge and the verdict sheet, not on this ground, but on the ground that the charge and the verdict sheet failed to alert the jury that notice to an employee of a defendant constituted notice to the defendants, an issue not propounded on appeal (see Moore v Leaseway Transp. Corp., 49 NY2d 720, 722 [1980]; McCummings v New York City Tr. Auth., 177 AD2d 24, 31-32 [1992], affd 81 NY2d 923 [1993], cert denied 510 US 991 [1993]). The plaintiffs’ contention that the defendants’ attorney made improper comments during summation is likewise unpreserved for appellate review (cf. Gonzalez v Lok K. Cheng, 287 AD2d 595, 596 [2001]). The plaintiffs’ remaining contention is without merit. Crane, J.E, Rivera, Skelos and Dillon, JJ., concur.