Opinion
March 12, 1990
Appeal from the Supreme Court, Kings County (Held, J.).
Ordered that the order is affirmed, with costs.
The plaintiffs failed to object to the bifurcation of the liability and damages parts of the trial, so they have waived that issue (see, CPLR 5501 [a] [3]; Sanchez v Kato, Inc., 115 A.D.2d 646). In any event, the plaintiffs have failed to show a need to introduce evidence of the infant plaintiff's injuries in order to establish liability (see, Gee v New York City Tr. Auth., 135 A.D.2d 778; DiMauro v Metropolitan Suburban Bus Auth., 105 A.D.2d 236, 246). Likewise, no issue was preserved with respect to the trial court's questioning of an eight-year-old witness, and, even if the issue had been preserved, it is apparent that the court's action was intended to elicit and clarify testimony and that it did not prejudice the plaintiffs (see, LaMotta v City of New York, 130 A.D.2d 627; Kaffalos, Inc. v Excelsior Ins. Co., 105 A.D.2d 957, 958). The jury was properly instructed about the applicable law (Timmons v Hecker, 110 A.D.2d 762, 763), and its verdict was based on a fair interpretation of the evidence (see, Singh v New York City Tr. Auth., 143 A.D.2d 1001; Frank v Fisher, 142 A.D.2d 665).
So much of the order as granted the defendant partial summary judgment dismissing the plaintiffs' cause of action for medical expenses is also affirmed. The defendant contends that these expenses are covered by no-fault benefits. In their opposition to the defendant's cross motion, the plaintiffs stated that, in order to avoid inconsistent verdicts, the Supreme Court should direct that a declaratory judgment action be instituted against Aetna Casualty and Surety Company for a judgment declaring that it is obligated to pay these expenses as no-fault benefits. Since that is effectively the relief that the Supreme Court granted, the plaintiffs' argument must be rejected. We note that the order provides that the plaintiffs may move to modify the order appealed from if their action for a declaratory judgment is unsuccessful. Brown, J.P., Kunzeman, Harwood and Rosenblatt, JJ., concur.