605 N.Y.S.2d 692 | N.Y. App. Div. | 1993
—Judgment unanimously affirmed without costs. Memorandum: Plaintiffs contend that a new trial is required on the ground that Supreme Court precluded testimony that defendants owners and general contractor of the parking ramp where plaintiff Michael Pellescki was allegedly
The court’s improper missing witness charge does not require reversal. The witness was a neurologist whose testimony was relevant only to proximate cause. In arriving at its verdict, the jury did not reach the issue of proximate cause and plaintiffs were not, therefore, prejudiced by the error (see, CPLR 2002). Moreover, the arguments raised by plaintiffs on appeal were not addressed at trial and are, therefore, unpreserved.
At oral argument, plaintiffs’ attorney asserted that the court’s charge on foreseeability was prejudicial because it improperly required a probability of injury rather than a possibility of injury. That argument, however, was not asserted in plaintiffs’ brief. We therefore decline to address it.
Finally, we conclude that the jury’s verdict is supported by the weight of the evidence. (Appeal from Judgment of Supreme Court, Monroe County, Calvaruso, J. — Negligence and Strict Products Liability.) Present — Denman, P. J., Green, Balio, Fallon and Boehm, JJ.