Klein v. Academy of Model Aeronautics

246 A.D.2d 629, 667 N.Y.S.2d 311, 1998 N.Y. App. Div. LEXIS 581

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (LeVine, J.), entered June 25, 1996, which, upon the granting of the motion of the defendant Steven Spitzer for judgment as a matter of law pursuant to CPLR 4401, made at the close of the plaintiffs’ case, and upon a jury verdict in favor of the remaining defendant Salvatore Battaglia, dismissed the complaint as against those defendants.

Ordered that the judgment is affirmed, with costs.

This case arises from an accident which occurred when the infant plaintiff, while riding his dirt bike, was struck in the head by a radio-controlled model airplane flown by the defendants. The accident occurred in án area of a park where the use of dirt bikes was prohibited, but the flying of such planes was authorized by special permit. The club to which the individual defendants belonged had such a permit.

The plaintiffs’ claims that the cumulative effect of the defense counsel’s arguments and remarks, as well as of certain gratuitous comments of the trial court, operated to deprive them of a fair trial, are unpreserved for appellate review and are, in any event, without merit (see, Bacigalupo v Healthshield, Inc., 231 AD2d 538; Torrado v Lutheran Med. Ctr., 198 AD2d 346). Moreover, the jury’s verdict in favor of the defendant Salvatore Battaglia is not against the weight of the evidence (see, Nicastro v Park, 113 AD2d 129). Finally, the trial court’s refusal to charge the jury that the accident was foreseeable as a matter of law does not require reversal. Santucci, J. P., Joy, Friedmann and Luciano, JJ., concur.