Weekes v. City of New York

250 A.D.2d 354, 672 N.Y.S.2d 683, 1998 N.Y. App. Div. LEXIS 5249

Opinion

—Judgment, Supreme Court, Bronx County (Barry Salman, J.), entered September 12, 1996, upon a jury verdict, in favor of defendant dismissing the complaint, and bringing up for review an order, same court and Justice, entered January 15, 1997, which, in an action against defendant City to recover for personal injuries sustained in a fall allegedly caused by a sidewalk defect, denied plaintiffs motion to set aside the verdict, unanimously affirmed, without costs. The appeal from the order is unanimously dismissed, without costs, as subsumed within the appeal from the judgment.

Plaintiffs claim that it was error to submit to the jury the is sue of whether the City had notice of the sidewalk defect that allegedly caused him to fall was not preserved by objection (CPLR 4110-b; see, Carrasquillo v American Type Founders Co., 183 AD2d 410, lv denied 81 NY2d 703), and we decline to review the claim. In any event, it is without merit in view of the variance between plaintiffs testimony concerning the nature of the defect and the markings on the Big Apple map that plaintiff claims gave the City notice as a matter of law. Nor is the finding that the map did not give the City notice of the alleged defect against the weight of the evidence. Concur— Lerner, P. J., Nardelli, Wallach, Rubin and Mazzarelli, JJ.