Theodosiou v. CLD Transportation Co.

— In an action to recover damages for negligence, the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Lonschein, J.), entered May 14, 1987, which dismissed the complaint. Ordered that the judgment is affirmed, with costs. The jury’s verdict was not against the weight of the evidence, since the jury could have arrived at its determination based on a fair interpretation of the evidence (see, Nicastro v Park, 113 AD2d 129). Further, we find that any claim of error as to the court’s charge concerning the alleged culpable conduct of the plaintiff Efstratios Theodosiou is moot, in light of the jury’s finding of no negligence on the part of the defendant Richard Bennett (see, Bowe v City of New York, 128 AD2d 495; Niedelman v Jacoby, 127 AD2d 640). Finally, the plaintiffs’ claim that the court improperly marshaled the evidence is unpreserved for appellate review (see, CPLR 4110-b; Niedelman v Jacoby, supra; Saleh v Sears, Roebuck & Co., 119 AD2d 652; Green v Meyer, 114 AD2d 352). In any event, the court properly marshaled the evidence. Thompson, J. P., Brown, Kunzeman and Balletta, JJ., concur.