Chiesi v. Lumbermens Mutual Casualty Co.

97 A.D.2d 884, 470 N.Y.S.2d 473, 1983 N.Y. App. Div. LEXIS 20673

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1983
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court in favor of plaintiff, entered January 24, 1983 in Broome County, upon a verdict rendered at Trial Term (Fischer, J.). After defendant denied plaintiff’s application for no-fault benefits pursuant to a clause in the insurance policy which excluded coverage for injuries sustained “as a result of operating a motor vehicle while in an intoxicated condition”, plaintiff commenced the instant action and prevailed following a jury trial. Defendant now contends that the trial court erred in its charge to the jury on the issue of causation and that the jury’s verdict is against the weight of the evidence. We find no merit in either contention and, therefore, affirm the judgment. Defendant failed to object to the charge given by the trial court and, thus, it was not preserved for review (CPLR 4110-b; see Caprara v Chrysler Corp., 71 AD2d 515, 523-524, affd 52 NY2d 114). We find no error in the charge so fundamental as to require our consideration of the issue in the interest of justice despite the lack of objection (see Horney v Tisyl Taxi Corp., 93 AD2d 291, 294). Accordingly, we do not pass on the claimed error in the trial court’s charge. As to the sufficiency of the evidence, there was conflicting proof presented on the issues of plaintiff’s intoxication and the cause of the accident. At least one of these issues, including the questions of credibility involved therein, was resolved by the jury in plaintiff’s favor. In view of the evidence in the record supporting the jury’s verdict, we see no basis for disturbing it. Judgment affirmed, with costs. Mahoney, P. J., Kane, Main, Casey and Levine, JJ., concur.