Murphy v. Waldbaum, Inc.

Plaintiffs’ contention that the trial court erred in refusing to submit the case on a theory of res ipsa loquitur is not preserved for appellate review (CPLR 4110-b; see also, Zito v New York State Elec. & Gas Corp., 122 AD2d 499, 500-501; cf., La Rocca v City of New York, 104 AD2d 753, 754). Counsel neither registered a specific exception to the court’s refusal to charge this theory at the charge conference nor interposed an objection subsequent to the delivery of the charge and before the jury retired. In any case, plaintiff failed to establish that the incident was "not * * * due to any voluntary action or contribution on [his] part” (Wen-Yu Chang v Woolworth Co., 196 AD2d 708), as is required before a party is entitled to a charge on res ipsa loquitur. We have considered plaintiffs’ remaining contentions, including that the jury verdict was against the weight of the evidence, and find them to be without merit. Concur—Ellerin, J. P., Wallach, Kupferman, Williams and Mazzarelli, JJ.