Brooks v. Schmidt , 166 A.D.2d 897 ( 1990 )

Judgment unanimously affirmed without costs. Memorandum: Plaintiff appeals from a judgment entered upon a jury verdict which found that defendants were not negligent. She contends that the conduct of the Trial Judge deprived her of a fair trial; that the court erred in failing to instruct the jury regarding driving while impaired by alcohol and "following too closely”; and that the court erred in failing to provide the jury with a medical exhibit during its deliberations.

There is no merit to plaintiff’s contention that the court exhibited bias or assumed the position of an advocate (see, LaMotta v City of New York, 130 AD2d 627; Gallo v Supermarkets Gen. Corp., 112 AD2d 345, lv denied 66 NY2d 605). Plaintiff made no requests for jury instructions, and the sole exception to the court’s charge was subsequently withdrawn. Under the circumstances, issues concerning the court’s jury instruction have not been preserved for our review (see, CPLR 4110-b; De Long v County of Erie, 60 NY2d 296, 306; Byrd v Genesee Hosp., 110 AD2d 1051). The trial court mistakenly concluded that a medical record had not been received in evidence and, as a result, refused to send the medical exhibit to the jury. The exhibit, however, pertained only to damages. Because the jury concluded that defendants were not negligent and never reached the issue of damages, the error was harmless. (Appeal from judgment of Supreme Court, Oneida County, Tenney, J.—negligence.) Present—Denman, J. P., Boomer, Pine, Balio and Lawton, JJ.