78 A.D.2d 848 | N.Y. App. Div. | 1980
In a products liability action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Suffolk County, entered August 6, 1979, in favor of the defendants, upon dismissal of the complaint at the close of the plaintiffs’ case. Judgment modified, on the law, by deleting therefrom the provisions in favor of defendant Coca-Cola Bottling Company of New York, Inc. As so modified, judgment affirmed, and as between plaintiffs and defendant Coca-Cola Bottling, action severed and new trial granted with costs to abide the event. Trial Term erred in excluding the bottle and cap offered into evidence by plaintiffs since a sufficient foundation for their admissibility was laid. The record contains testimony that the bottle and cap were the ones in question, and also that their condition was basically the same as it was at the time of the happening of the incident. The weight given to this evidence and the credibility of the authenti-. eating witness were matters for the jury to consider (see Wessel v Krop, 30 AD2d 764). Moreover, the trial court.unduly restricted the plaintiffs from eliciting expert opinion as to the cause of the breaking of the bottle. Since the trial court’s errors prevented the plaintiffs from establishing a prima facie case against defendant Coca-Cola Bottling Company of New York, Inc., they are entitled to a new trial. However, the judgment is affirmed with respect to Edlund Co., Inc., the manufacturer of the bottle opener, since the trial court’s errors did not affect .the presentation of plaintiffs’ case against that defendant and plaintiffs failed to establish a prima facie case of liability on its part. Gibbons, J. P., Gulotta, Margett and Martuscello, JJ., concur.