O'Neill v. Spitzer

160 A.D.2d 298, 553 N.Y.S.2d 392, 1990 N.Y. App. Div. LEXIS 3990

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 1990
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Robert H. Wagner, J.), entered November 7,1988, which upon the court’s order at the conclusion of the evidence dismissing the action as against defendant Spitzer, and upon a jury verdict in favor of the remaining defendant, dismissed the plaintiff’s action, unanimously affirmed, without costs.

We find no error in the trial court’s charge on "momentary forgetfulness”, which was given at the request of the plaintiff. In any event, any error in the language of the charge as given could not have prejudiced the plaintiff, since the jury never reached the issue of her comparative negligence. Similarly, the court’s charge to the jury to consider the negligence of the City of New York, a nonparty, even if error, could not have prejudiced the plaintiff, since the jury never reached the issue of contribution among joint tort-feasors. Nor do we find that any of the other claimed errors warrant reversal. Concur— Ross, J. P., Carro, Rosenberger, Ellerin and Smith, JJ.