SIEGEL v. Two Guys Auto Repair Service, et al., Respondents.

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Supreme Court, Appellate Division, Second Department, New York.

Florence SIEGEL, et al., Appellants, v. CHAMPION PARTS, INC., Defendant, Two Guys Auto Repair Service, et al., Respondents.

Decided: September 30, 2002

MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, CORNELIUS J. O'BRIEN and HOWARD MILLER, JJ. Miller & Goldman, P.C., New York, N.Y., (Julie L. Miller and Linda A. Goldman of counsel), for appellants. Kral, Clerkin, Redmond, Ryan, Perry & Girvan, Mineola, N.Y., (Thaddeus J. Rozanski of counsel), for respondent Two Guys Auto Repair Service. Michael F.X. Manning, Melville, N.Y., (John P. Humphreys of counsel), for respondent Manley's Auto Complete Car Care Center West.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County (Winslow, J.), entered May 9, 2001, as, upon a jury verdict in favor of the defendants Two Guys Auto Repair Service and Manley's Auto Complete Car Care Center West and against them, dismissed the complaint insofar as asserted against those defendants.

ORDERED that the judgment is affirmed insofar as appealed from, with one bill of costs.

The plaintiff Florence Siegel was injured when the van she was driving unexpectedly accelerated and crashed into a fence.   According to the plaintiffs' expert, the unexpected acceleration was caused by a misadjustment of the air conditioner idle screw on the carburetor.   The defendant Manley's Auto Complete Car Care Center West had installed a rebuilt carburetor in the vehicle about two months before the accident, and, on the day of the accident, the defendant Two Guys Auto Repair Service cleaned the carburetor.   The defendants' expert disagreed that a misadjusted air conditioner idle screw caused the car's engine to race, and concluded that the accident occurred because the plaintiff driver mistakenly stepped on the accelerator instead of the brake.   The jury rendered a verdict in favor of the defendants.

Contrary to the plaintiffs' contention, the Supreme Court properly submitted to the jury interrogatories on the verdict sheet which limited the defendants' liability to the failure to adjust the air conditioner idle screw on the carburetor, as that was the theory of liability the plaintiffs relied upon during the trial (see Fridenberger v. Modayil, 268 A.D.2d 457, 458, 702 N.Y.S.2d 335;  Fallon v. Damianos, 192 A.D.2d 576, 577, 596 N.Y.S.2d 134).

The remaining issues raised by the plaintiffs regarding the Supreme Court's rulings during the trial are either unpreserved for appellate review or without merit.

We have not considered the plaintiffs' contentions regarding the defendants' summations, as they failed to include a transcript of the summations in their appendix (see CPLR 5525, 5528;  22 NYCRR 670.10;  Desmarat v. Basile, 288 A.D.2d 336, 337, 734 N.Y.S.2d 461;  Matter of Allstate Ins. Co. v. Vargas, 288 A.D.2d 309, 310, 732 N.Y.S.2d 891).

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