Goldberg v. Wirtosko ( 1992 )

Order, Supreme Court, New York County (Stuart C. Cohen, J.), entered December 27, 1990, which denied plaintiffs motion for a new trial after a jury verdict in defendant’s favor, unanimously affirmed, without costs.

In this malpractice action, the trial court, in response to the jury request for a supplemental instruction on legal malpractice, reread the malpractice charge originally given without however, rereading those portions as pertained to a doctor’s deviation from a drug manufacturer’s recommendations. We agree with the trial court that because plaintiff did not object to the supplemental instruction before the jury resumed its deliberations, the issue is not preserved for review (CPLR 4110-b; De Long v County of Erie, 60 NY2d 296, 306). We decline to exercise our discretion and consider plaintiffs claim in the interest of justice (see, Rodriguez v Cato, 63 AD2d 922), the omission being of insufficient magnitude to constitute fundamental error where it was part of the court’s original charge. Concur—Murphy, P. J., Sullivan, Ellerin, Kupferman and Kassal, JJ.