Opinion
February 27, 1989
Appeal from the Supreme Court, Queens County (Lonschein, J.).
Ordered that the judgment is affirmed, with costs.
The jury's verdict was not against the weight of the evidence, since the jury could have arrived at its determination based on a fair interpretation of the evidence (see, Nicastro v Park, 113 A.D.2d 129). Further, we find that any claim of error as to the court's charge concerning the alleged culpable conduct of the plaintiff Efstratios Theodosiou is moot, in light of the jury's finding of no negligence on the part of the defendant Richard Bennett (see, Bowe v City of New York, 128 A.D.2d 495; Niedelman v Jacoby, 127 A.D.2d 640). Finally, the plaintiffs' claim that the court improperly marshaled the evidence is unpreserved for appellate review (see, CPLR 4110-b; Niedelman v Jacoby, supra; Saleh v Sears, Roebuck Co., 119 A.D.2d 652; Green v Meyer, 114 A.D.2d 352). In any event, the court properly marshaled the evidence. Thompson, J.P., Brown, Kunzeman and Balletta, JJ., concur.