Kamen v. City of New York

• Decision Date: 14 January 1991
• Citation: 564 N.Y.S.2d 190,169 A.D.2d 705
• Parties: Ruth K. KAMEN, etc., Appellant, v. The CITY OF NEW YORK, Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 190

564 N.Y.S.2d 190

169 A.D.2d 705

Ruth K. KAMEN, etc., Appellant, v. The CITY OF NEW YORK, Respondent, et al., Defendant.

Supreme Court, Appellate Division Second Department.

Jan. 14, 1991.

Leonard L. Finz, P.C., New York City (DiJoseph & Gluck [Steven DiJoseph], of counsel), for appellant.

Victor A. Kovner, Corp. Counsel, New York City (Leonard Koerner and Ellen B. Fishman, of counsel), for respondent.

Before THOMPSON, J.P., and KUNZEMAN, LAWRENCE and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals from so much of a judgment of the Supreme Court, Kings County (Huttner, J.), entered August 3, 1988, as, upon a jury verdict in favor of the defendant the City of New York, dismissed the complaint insofar as asserted against it.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The instant action arose as a result of a two-car collision on the Belt Parkway in Brooklyn. The injured plaintiff, Ruth Kamen, was a passenger in the car owned and operated by her husband Gilbert Kamen. Gilbert Kamen died in the accident. The Kamens were driving westbound when a station wagon owned and operated by the defendant Harold Brown, traveling in the opposite direction, jumped the median guardrail and struck the Kamen's car head on. An action was commenced against Harold Brown for, inter alia, negligent driving and the City of New York for, inter alia, negligent maintenance of the median guardrail as well as the nearby concrete curb. After a trial by jury, a judgment was entered in favor of the plaintiff and against the driver who was found to be 100% at fault. The action against the City of New York was dismissed after a finding of no liability.

The plaintiff claims that the defense counsel for the City of New York made several improper comments during the course of the trial. However, the plaintiff's failure to move for a mistrial on the grounds which she now claims constituted reversible error amounted to a waiver of these objections (see, Scott v. Mason, 155 A.D.2d 655, 657, 547 N.Y.S.2d 889; Kane v. Zade, 63 A.D.2d 993, 406 N.Y.S.2d 116; Reilly v. Wright, 55 A.D.2d 544, 545, 390 N.Y.S.2d 1; Dunne v. Lemberg, 54 A.D.2d 955, 956, 388 N.Y.S.2d 635; Moore v. Town of Huntington, 39 A.D.2d 764, 332 N.Y.S.2d 184). In any event, we have determined that the plaintiff received a fair and proper trial. The comments complained of do not rise to the level of the type of error mandating reversal (see, e.g., Vassura v. Taylor, 117 A.D.2d 798, 499 N.Y.S.2d 120; Weinberger v. City of New York, 97 A.D.2d 819, 468 N.Y.S.2d 697; Giuamara v. O'Donnell, 96 A.D.2d 1049, 466 N.Y.S.2d 692; Caraballo v. City of New York, 86 A.D.2d 580, 446 N.Y.S.2d 318).

Moreover, we find...