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LILLIAN CONA, ETC., appellant, v. JOHN J. DWYER, ET AL., respondents.

ORDERED that the judgment is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

Contrary to the plaintiff's contention, the jury finding that the defendant crane operator's negligence was not a proximate cause of the accident was not against the weight of the evidence, as it was supported by a fair interpretation of the evidence (see Campbell v. Crimi, 267 A.D.2d 343, 344; Potter v. Korfhage, 240 A.D.2d 717, 718; Nicastro v. Park, 113 A.D.2d 129). A jury finding that a party was negligent but that such negligence was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are "so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause" (Rubin v. Pecoraro, 141 A.D.2d 525, 527; see Hernandez v. Baron, 248 A.D.2d 440; Schaefer v. Guddemi, 182 A.D.2d 808, 809). In the present case, a finding of proximate cause did not inevitably flow from the finding of culpable conduct.

The plaintiff's additional contention that the trial court erroneously delivered an intoxication charge to the jury is unpreserved for appellate review as the plaintiff never objected to the charge at trial (see CPLR 4110-b; Harris v. Armstrong, 64 N.Y.2d 700, 701; Morrissey v. City of New York, 221 A.D.2d 607). In any event, there was sufficient evidence adduced at trial to support the charge (see Randazzo v. Consolidated Edison Co. of New York, 271 A.D.2d 667, 668; cf. Vetere v. Garcia, 211 A.D.2d 631, 632).

S. MILLER, J.P., KRAUSMAN, H. MILLER and ADAMS, JJ., concur.

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CONA v. DWYER
(Mar 25, 2002)