Henderson v. Marden Construction Corp. — 62 Misc. 2d 940

Majority

p. 940

Sam Henderson, Jr., Respondent, v. Marden Construction Corp. et al., Appellants, et al., Defendants.

Supreme Court, Appellate Term, Second Department,

February 11, 1970.

Zweibel & Foster (William F. Larkin and Jerome D. Cohen of counsel) for Marden Construction Corp., appellant. Mele & Cullen (Russell B. Greaves of counsel), for John Di Blasi, appellant. Garry G. Blaustein for respondent.

Plaintiff adduced no evidence of specific acts or omissions which would constitute negligence on the part of the defendants. Although the doctrine of res ipsa loquitur is now asserted in support of the judgment, the case was not submitted to the jury upon this theory and therefore it cannot be invoked for the first time on appeal (Meyers v. Grand Union Co., 30 A D 2d 704 ). The interests of justice require a new trial at which plaintiff should be afforded an opportunity to develop his case on any theory of negligence as he may he advised. The issues raised in the cross complaint should also fee disposed of upon the new trial.

The judgment should be unanimously reversed and a new trial ordered, with $30 costs to each appellant to abide the event.

Concur — Croat, P. J., Rinaldi and Cone, JJ.

Judgment .reversed, etc.