Natale v. Rockefeller Center Management Corp.

—Order, Supreme Court, New York County (William Davis, J.), entered September 14, 1994, which denied plaintiffs’ motion to set aside the verdict in favor of defendants, unanimously affirmed, without costs. It was within the province of the jury to resolve the conflicting evidence on the key factual issue of whether any warning cones had been placed in the area where plaintiff allegedly tripped and thus, the verdict was not against the weight of the evidence (see, Vavosa v Stiles, 220 AD2d 363, 364). Defense counsel’s reading of excerpts from plaintiff’s deposition, and his attempts to provide the jury with the defense’s interpretations of her statements were not prejudicial, particularly in light of plaintiff’s forceful articulation before the jury of her own view. Similarly, plaintiff’s clarification that her numerous post-accident vacations were sedentary because of her claimed physical limitations dispelled the possibility that the evidence of and comments on such vacations had a different, inappropriate effect on the jury; moreover, further questioning disclosed relevant information about injuries sustained during an accident that occurred after the one at issue herein. In sum, the comments of which plaintiffs complain [195] were not so egregious, either alone or cumulatively, as to warrant reversal. There was neither objection to defense counsel’s comment that plaintiffs had failed to call certain witnesses, nor any mention of the alleged impropriety in plaintiffs’ motion to set aside the verdict, and thus this fact-based issue may not be raised for the first time on appeal (see, City of New York v Stack, 178 AD2d 355, lv denied 80 NY2d 753). We have considered plaintiffs’ other contentions and find them to be without merit. Concur — Sullivan, J. P., Wallach, Rubin and Tom, JJ.