Estelle Alexander et al., Appellants, v. City of New York et al., Respondents, et al., Defendant

(June 23, 1997) Estelle Alexander et al., Appellants, v City of New York et al., Respondents, et al., Defendant. [659 NYS2d 998] [MAJORITY] In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Berke, J.), entered March 28, 1996, as, upon a jury verdict in favor of the defendant City of New York and against them, dismissed the complaint. Ordered that the judgment is affirmed insofar as appealed from, with costs. The plaintiff Estelle Alexander allegedly tripped and fell over an elevated sidewalk flag owned by the defendant City of New York. Her testimony was not contradicted at trial. The jury returned a verdict finding that the City was negligent, but that its negligence was not a substantial factor in causing the accident. The plaintiffs contend, inter alia, that the City improperly used an unadmitted medical report to impeach the plaintiff, and that the summation by the City was improper. The plaintiffs’ contentions are unpreserved for appellate review (see, CPLR 5501 [a]; see also, Bacigalupo v Healthshield, Inc., 231 AD2d 538; Torrado v Lutheran Med. Ctr., 198 AD2d 346). In any event, the unadmitted medical report was not improperly used, and the summation by the City constituted fair comment on the evidence presented (see, Freeman v Kirkland, 184 AD2d 331). The plaintiffs’ remaining contentions are either without merit or involved harmless errors which were cured by the court’s instructions (see, Lauter v Village of Great Neck, 231 AD2d 553). Mangano, P. J., Copertino, Florio and McGinity, JJ., concur.