Franklin v. Nestved

225 A.D.2d 1026, 639 N.Y.2d 237

Opinion

Memorandum: Plaintiffs failed to preserve for our review their argument that the jury instruction on proximate cause erroneously implied that there could be only one proximate cause of plaintiff Gayle J. Franklin’s injuries (see, Liebgott v City of New York, 213 AD2d 606; Frasier v McIlduff, 161 AD2d 856, 859-860). Plaintiffs failed to object to the jury instruction, and indeed, argued on summation that the accident was the only cause of the alleged injuries, while defendants argued that the alleged injuries were exaggerated. This case does not present a "close issue of proximate cause” that might otherwise warrant the exercise of our discretion to reverse (Capicchioni v Morrissey, 205 AD2d 959, 961). (Appeal from Judgment of Supreme Court, Onondaga County, Murphy, J. — Serious Injury.) Present — Denman, P. J., Lawton, Wesley, Doerr and Balio, JJ.