Opinion
2001-00280
Argued March 1, 2002.
March 25, 2002.
In an action to recover damages for personal injuries and wrongful death, the plaintiff appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Kings County (Ruchelsman, J.), dated September 28, 2000, as, upon a jury verdict finding that the defendant John J. Dwyer's negligence was not a proximate cause of the accident, is in favor of defendants and against her dismissing the complaint.
Costello, Shea Gaffney, LLP, New York, N.Y. (Michael J. Morris of counsel), for appellant.
Montclare Wachtler, New York, N.Y. (Lauren J. Wachtler of counsel), for respondent John J. Dwyer.
Melito Adolfsen, P.C., New York, N.Y. (Ignatius John Melito and Steven I. Lewbel of counsel), for respondents Anthony Marino Construction Corp., AMCC Corp., and Anthony Marino Contractors, Inc.
Before: SONDRA MILLER, J.P., GABRIEL M. KRAUSMAN, HOWARD MILLER, and THOMAS A. ADAMS, JJ.
ORDERED that the judgment is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.
Contrary to the plaintiff's contention, the jury finding that the defendant crane operator's negligence was not a proximate cause of the accident was not against the weight of the evidence, as it was supported by a fair interpretation of the evidence (see Campbell v. Crimi, 267 A.D.2d 343, 344; Potter v. Korfhage, 240 A.D.2d 717, 718; Nicastro v. Park, 113 A.D.2d 129). A jury finding that a party was negligent but that such negligence was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are "so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause" (Rubin v. Pecoraro, 141 A.D.2d 525, 527; see Hernandez v. Baron, 248 A.D.2d 440; Schaefer v. Guddemi, 182 A.D.2d 808, 809). In the present case, a finding of proximate cause did not inevitably flow from the finding of culpable conduct.
The plaintiff's additional contention that the trial court erroneously delivered an intoxication charge to the jury is unpreserved for appellate review as the plaintiff never objected to the charge at trial (see CPLR 4110-b; Harris v. Armstrong, 64 N.Y.2d 700, 701; Morrissey v. City of New York, 221 A.D.2d 607). In any event, there was sufficient evidence adduced at trial to support the charge (see Randazzo v. Consolidated Edison Co. of New York, 271 A.D.2d 667, 668; cf. Vetere v. Garcia, 211 A.D.2d 631, 632).
S. MILLER, J.P., KRAUSMAN, H. MILLER and ADAMS, JJ., concur.