Toner v. Arnold Constable — 61 Misc. 2d 591

Majority

p. 591

Mary D. Toner, Respondent, v. Arnold Constable et al., Defendants, and Sophia Beauty Salons, Inc., Defendant-Appellant and Third-Party Plaintiff-Appellant. Ozon Products, Inc., Third-Party Defendant-Respondent.

Supreme Court, Appellate Term, First Department,

December 11, 1969.

Mele $ Cullen (Henry J. Smith and Neil S. Davis of counsel), for appellant. Edward Kurland and Stephen G. Winn for respondent.

We believe it was a proper exercise of discretion, in setting aside the verdict in plaintiff’s favor, to order a new trial rather than dismiss the complaint, and thus afford plaintiff “ the opportunity — to demonstrate the causal connection between the negligence found and the injury sustained.” This was the course adopted in Ravo v. Lido ( 17 A D 2d 476 ). Since, however, the liability of defendant (Sophia), if so established on a new trial, would not necessarily exclude liability over of the third-party defendant Ozon Products, Inc. (Ozon) on Sophia’s third-party complaint against Ozon, it was error not to set aside the verdict in its entirety and to order a new trial as to all parties.

p. 592

The order should be modified to the extent of setting aside the verdict in its entirety and ordering a new trial, with $10 costs to plaintiff against defendant and with $10 costs to abide the event to defendant third-party plaintiff against third-party defendant.

Concur — Steeit, J. P., Quinn and Hoestadter, JJ.

Order modified, etc.

Cases cited

Ravo v. Lido 17 A D 2d 476 N.Y. App. Div. 1962-12-24 p. 591