        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

889
CA 11-02061
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


JESSE LUCAS, JR., PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DR. ALAN WEINER, D.D.S., DEFENDANT-RESPONDENT.


FRANK S. FALZONE, BUFFALO, FOR PLAINTIFF-APPELLANT.

ANSPACH MEEKS ELLENBERGER LLP, BUFFALO (DAVID M. STILLWELL OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Patrick
H. NeMoyer, J.), entered July 1, 2011 in a dental malpractice action.
The judgment dismissed the complaint upon a jury verdict.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this dental malpractice action
seeking damages for injuries he sustained when defendant was
extracting one of his molars. The jury returned a verdict in favor of
defendant, finding that he was not negligent. Plaintiff failed to
preserve for our review his contention that Supreme Court erred in
denying his request to charge the doctrine of res ipsa loquitur
inasmuch as he failed to object to the court’s charge as given. In
fact, when the court asked the parties’ attorneys following the charge
outside the presence of the jury whether there were any objections to
the charge, plaintiff’s attorney answered, “No, Your Honor.” Although
plaintiff asserts that, before the charge was given, his attorney
objected to the court’s refusal to charge that doctrine during an off-
the-record charge conference, that assertion is belied by the record.
According to the record before us, the court stated following the
charge conference that “there were no exceptions to the Court’s
proposed charge,” and plaintiff’s attorney stated, “That’s correct,
Your Honor.” We note that plaintiff’s initial request that the court
charge the doctrine of res ipsa loquitur does not preserve his present
contention for our review; he must also have objected when the court
thereafter did not give that charge (see Kilburn v Acands, Inc., 187
AD2d 988, 988-989; Jones v Brilar Enters., 184 AD2d 1077, 1078; Byrd v
Genesee Hosp., 110 AD2d 1051, 1052). In any event, we conclude that
the court properly refused to charge the doctrine of res ipsa loquitur
(see generally Abrams v Excellent Bus Serv., Inc., 91 AD3d 681, 682-
683).
                                 -2-                          889
                                                        CA 11-02061

     Finally, plaintiff’s remaining contention that the verdict is
against the weight of the evidence is unpreserved for our review (see
Murdoch v Niagara Falls Bridge Commn., 81 AD3d 1456, 1457, lv denied
17 NY3d 702), and in any event that contention is without merit (see
generally Lolik v Big V Supermarkets, 86 NY2d 744, 746).




Entered:   October 5, 2012                     Frances E. Cafarell
                                               Clerk of the Court
