Opinion
1542
August 15, 2002.
Order, Supreme Court, New York County (Kibbie Payne, J.), entered December 28, 2001, which granted plaintiffs' motion to set aside a jury verdict and for a new trial, unanimously reversed, on the law, without costs, the motion denied, and the verdict reinstated. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint.
ESTHER I. OBIORA for plaintiffs-respondents.
ANTHONY J. MCNULTY for defendants-appellants.
Nardelli, J.P., Andrias, Friedman, Marlow, Gonzalez, JJ.
During the trial of this personal injury action, defense counsel, on cross-examination, elicited from plaintiff testimony admitting that he had previously asserted a claim based on the same motor vehicle accident against Kevin Leeks, who is not a party to this action, and had settled that claim. Although plaintiffs' counsel successfully objected to inquiry into the amount of the settlement, no objection was made to the line of inquiry seeking to establish the fact of the settlement with Leeks. Nor did plaintiffs' counsel make any effort, prior to verdict, to have the testimony concerning the settlement excluded from the jury's consideration. After the jury returned a verdict in favor of defendants, finding, inter alia, that Leeks had been the driver at fault in the accident, plaintiffs moved pursuant to CPLR 4404(a) for an order setting aside the verdict and granting a new trial, on the ground that the admission of evidence concerning the settlement had violated CPLR 4547. In granting this motion, the trial court erred. Where a party fails to make timely objection to a line of inquiry during the examination of a witness at trial, as required by CPLR 4017, "the testimony offered is presumed to have been unobjectionable and any alleged error considered waived" (Horton v. Smith, 51 N.Y.2d 798, 799; see also, e.g., Simon v. Indursky, 211 A.D.2d 404, 405; Komsa v. Colonial Penn Ins. Co., 188 A.D.2d 367). Accordingly, the verdict should be reinstated and judgment entered thereon.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.