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O'Loughlin v. Butler

2 A.D.3d 605 Court N.Y. App. Div. Decision date 2003-12-15 English

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p. 605
James O’Loughlin et al., Respondents, v William Butler et al., Appellants.
[768 NYS2d 348]

—In an action to recover damages for personal injuries, the defendants, William Butler, Timothy Butler, and Wagner & Kelly Management, Inc., appeal from a judgment of the Supreme Court, Queens County (Weiss, J.), dated April 26, 2002, which, inter alia, upon a jury verdict, is in favor of the plaintiffs and against the defendants William J. Butler and Wagner & Kelly Management, Inc., on the issue of liability.

Ordered that the appeal by Timothy Butler is dismissed, as he is not aggrieved by the judgment appealed from (see CPLR 5511); and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiffs payable by the defendants.

Since the defendants Walter J. Butler and Wagner & Kelly

p. 606
Management, Inc. (hereinafter the defendants), failed to object to the alleged defects in the jury charge, the issues raised with respect thereto are not preserved for appellate review (see CPLR 4110-b; Laboda v VJV Dev. Corp., 296 AD2d 441 [2002]; Surjnarine v Brathwaite, 290 AD2d 436 [2002]). Moreover, viewing the evidence as a whole, there was a rational process by which the jury could have found in favor of the plaintiffs on the issue of liability (see Sam v Zelman, 252 AD2d 550 [1998]; Lipsius v White, 91 AD2d 271 , 276-277 [1983]). Furthermore, the verdict on the issue of liability was not against the weight of the evidence (see Nicastro v Park, 113 AD2d 129 [1985]).

The defendants’ remaining contentions either are unpreserved for appellate review or without merit. Altman, J.P., S. Miller, Goldstein and Crane, JJ., concur.

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