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61 Misc. 2d 591

Toner v. Arnold Constable

Appellate Terms of the Supreme Court of New York · decided 1969-12-11

Decided 1969-12-11

Per Curiam.

¶1We 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.

¶2*592The 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.

¶3Concur — Steeit, J. P., Quinn and Hoestadter, JJ.

¶4Order modified, etc.

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