Grace v New York City Tr. Auth., 2014 NY Slip Op 08362 (1st Dept. 2014)
When you sit at the charge conference, make sure you note your objections to the jury charges, or the instructions. CPLR 4110-b. The failure to do this will result in a waiver. The Appellate Division discussed this in detail:
(The verdict sheet disaggregated loss of enjoyment of life from pain and suffering – which is wrong. I am unsure with the Trial Justice allowed this, but I was not there so I cannot comment)
“The record reflects that the jury charge correctly advised that loss of enjoyment of life was a component of pain and suffering (see Nussbaum v Gibstein, 73 NY2d 912, 914 [1989]). Defendant argues that the verdict sheet was inconsistent with this instruction. However, defendant concedes that it failed to object to the verdict sheet. Thus, defendant failed to preserve the issue of the error in the verdict sheet for review by this Court (see Klein-Bullock v North Shore Univ. Hosp. at Forest Hills, 63 AD3d 536, 536-537 [1st Dept 2009]; London v Lepley, 259 AD2d 298, 299 [1st Dept 1999]).
Where a party fails to object to errors in a verdict sheet, the charge becomes the law applicable to the determination of the case, and on appeal, this Court will review only if the error was “fundamental” (Aguilar v New York City Tr. Auth., 81 AD3d 509, 510 [1st Dept 2011]). We find that the alleged conflict between the jury charge and the verdict sheet was not fundamental since it did not confuse or create doubt as to the principle of law to be applied, or improperly shift fault, such that the “jury was prevented from fairly considering the issues at trial” (Curanovic v New York Cent. Mut. Fire Ins. Co., 22 AD3d 975, 977 [3d Dept 2005];Clark v Interlaken Owners, 2 AD3d 338, 340 [1st Dept 2003]).
