Summary
affirming the trial courts determination that an issue was not preserved for review where the plaintiff failed to object to a supplemental instruction
Summary of this case from Star Meth Corp. v. SteinerOpinion
April 2, 1992
Appeal from the Supreme Court, New York County (Stuart C. Cohen, J.).
In this malpractice action, the trial court, in response to the jury request for a supplemental instruction on legal malpractice, reread the malpractice charge originally given without however, rereading those portions as pertained to a doctor's deviation from a drug manufacturer's recommendations. We agree with the trial court that because plaintiff did not object to the supplemental instruction before the jury resumed its deliberations, the issue is not preserved for review (CPLR 4110-b; De Long v County of Erie, 60 N.Y.2d 296, 306). We decline to exercise our discretion and consider plaintiff's claim in the interest of justice (see, Rodriguez v Cato, 63 A.D.2d 922), the omission being of insufficient magnitude to constitute fundamental error where it was part of the court's original charge.
Concur — Murphy, P.J., Sullivan, Ellerin, Kupferman and Kassal, JJ.