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

548
CA 14-01096
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


DAVID K. BORYSZEWSKI, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOHN E. HENDERSON, GENERAL MOTORS ACCEPTANCE
CORPORATION, NIAGARA FRONTIER RECOVERY, LLC,
AND NIAGARA FRONTIER RECOVERY AND REMARKETING,
LLC, DEFENDANTS-RESPONDENTS.
(APPEAL NO. 1.)


LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (JON F. MINEAR OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

GOLDBERG SEGALLA LLP, BUFFALO (PAUL D. MCCORMICK OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Erie County (Tracey
A. Bannister, J.), entered February 21, 2014. The judgment, among
other things, awarded defendants costs and disbursements.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained during a confrontation with John E.
Henderson (defendant) that arose in connection with defendant’s
repossession of a pickup truck from an impound lot owned by plaintiff.
At the time of the alleged accident, defendant was transporting the
pickup truck on the bed of a flatbed truck and plaintiff was a
pedestrian. When defendant stopped at a traffic light, plaintiff
approached the flatbed truck on foot, stepped onto the running board,
and allegedly sustained an injury when defendant drove away.
Plaintiff alleged, inter alia, that during the incident defendant
violated Vehicle and Traffic Law §§ 425, 1162 and 1212, UCC 9-609, and
Penal Law § 140.10 (a). Following a trial, the jury returned a
verdict of no cause of action based on its determinations that the
accident did not occur during the repossession of the pickup truck and
that defendant was not negligent. Supreme Court thereafter denied
plaintiff’s motion seeking, inter alia, to set aside the verdict as
against the weight of the evidence and based upon juror misconduct.

     Plaintiff failed to preserve for our review his contention that
the court erred in failing to charge the jury with respect to
defendant’s alleged Vehicle and Traffic Law violations in accordance
                                 -2-                           548
                                                         CA 14-01096

with PJI 2:26. He did not request that charge or object to the charge
as given (see CPLR 4110-b, 5501 [a] [3]; McCummings v New York City
Tr. Auth., 177 AD2d 24, 31-32, affd 81 NY2d 923, rearg denied 82 NY2d
706, cert denied 510 US 991; Curanovic v New York Cent. Mut. Fire Ins.
Co., 22 AD3d 975, 976), nor in any event did he raise that alleged
error in his posttrial motion. “In the absence of preservation, a
jury verdict will not be set aside based on an alleged error in the
charge where, as here, the alleged error is not fundamental, i.e., ‘it
is [not] so significant that the jury was prevented from fairly
considering the issues at trial’ ” (Wood v Strong Mem. Hosp. of Univ.
of Rochester, 273 AD2d 929, 930).

      We reject plaintiff’s further contention that the court erred in
denying that part of his posttrial motion to set aside the verdict as
against the weight of the evidence. “[T]he preponderance of the
evidence in favor of plaintiff is not so great that the verdict could
not have been reached upon any fair interpretation of the evidence,
nor is the verdict palpably wrong or irrational” (Kettles v City of
Rochester, 21 AD3d 1424, 1425). Finally, “on the record of this case,
there was no showing of the ‘substantial risk of prejudice’ necessary
to warrant the granting of the motion to set aside the verdict” based
upon the allegedly improper communication between a juror and an
alternate juror during the trial, and thus the court properly denied
that part of plaintiff’s posttrial motion to set aside the verdict
based upon juror misconduct (Snediker v County of Orange, 58 NY2d 647,
649).




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
