concurs insofar as the order dated July 13, 1982 is affirmed, but otherwise dissents and votes to reverse the order dated November 8,1982, and deny plaintiff’s motion for reargument with the following memorandum, in which Titone, J. P., concurs: Although the majority has condoned plaintiff’s improper use of a motion to reargue, by sua sponte converting the motion for reargument into one for renewal (see Simpson v Loehmann, 21 NY2d 990; Foley v Roche, 68 AD2d 558), I believe that they have extended their munificence beyond reasonable parameters by affirming the granting of a new trial in the interest of justice based on the failure to give what is commonly referred to as a Noseworthy charge (see Noseworthy v City of New York, 298 NY 76). A Noseworthy charge was not requested, and no objection was made when the basic “fair preponderance” of the evidence charge was given in this negligence action. Accordingly, the failure to charge the Noseworthy standard was not preserved for appellate review (CPLR 4110-b; Passantino v Consolidated Edison Co. of N. Y., 54 NY2d 840; Pagnella v Action For Better Community, 57 AD2d 1076). This is not a case where the failure to charge Noseworthy should be deemed a fundamental error, so that the failure to object should be forgiven in the interest of justice (see DiGrazia v Castronova, 48 AD2d 249). Decedent died when, as a pedestrian, he tried to cross a double yellow line, against the light. He was waved on by defendant Katz, who was occupying one of the two lanes decedent had to cross, but when he tried to cross the second lane he was struck by a vehicle driven by defendant La Cour. Both individual defendants and a disinterested witness all testified to essentially the same facts constituting the basic scenario, and the questions of negligence and contributory negligence were clearly defined for and argued before the jury. The verdict of the jury is fully supportable under either a “fair preponderance” or a Noseworthy standard, and it should not be disturbed. In the Noseworthy case, the death of the decedent left basic gaps in providing the jury with an account of what had transpired. In this case, there is no reason to conclude that the jury did not have a thorough understanding of the events leading up to the accident. By affirming the order granting a new trial, the majority, in essence, is rewarding the efforts of a poorly prepared attorney by giving plaintiff a free trial under a “fair preponderance” standard, with a built-in opportunity for a second trial under a Noseworthy standard. The facts of this case simply do not justify this approach, and I respectfully dissent.