Helton v. Hirschman

Smith and Lawton, JJ. (dissenting).

We respectfully dissent. On appeal, Felicia Helton (plaintiff) limited her argument to whether Supreme Court erred in apportioning fault to the nonparty protesters because defendants failed to plead CPLR article 16 as an affirmative defense and because plaintiff could not obtain personal jurisdiction over the protesters. We do not agree with the majority that we should consider the issue of jury confusion. In our view, plaintiff abandoned that issue and this Court should not reach it in the interest of justice (see Ciesinski v Town of Aurora, 202 AD2d 984…