At the close of the trial court's charge, the defendant city excepted to the omission of an instruction on foreseeability and stated it had assumed that foreseeability would be included in the general instructions on the elements of negligence. The trial court's only explanation for its refusal to so charge was that the request came "too late."
However, CPLR 4110-b provides, in pertinent part: "No party may assign as error the giving or the failure to give an instruction...
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