100 A.D.2d 953 | N.Y. App. Div. | 1984
In an action to recover damages for personal injuries predicated upon theories of negligence, strict products liability and breach of implied warranty, plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Morrison, J.), entered February 3,1983, as (1) granted defendant’s motion to set aside the jury verdict in his favor on the implied warranty theory on the ground of inconsistency, (2) directed a new trial on all issues, and (3) directed, inter alia, that the case be placed on the Day Calendar of Trial Term, Part I, and defendant cross-appeals, as limited by its brief, from so much of the same order as denied its motion to set aside the verdict in plaintiff’s favor on the ground that the verdict was contrary to the weight of the evidence. H Order modified, on the law, by deleting the third, fourth and fifth decretal paragraphs and substituting therefor a provision denying defendant’s motion to set aside the verdict in favor of plaintiff on the issue of liability upon the theory of implied warranty, and that verdict is reinstated. As so modified, order affirmed, insofar as appealed from, with one bill of costs payable by defendant, and the matter is remitted to the Supreme Court, Nassau County, for trial on the issue of damages. K On March 24, 1977, plaintiff purchased a pair of skis, bindings, poles, boots and other items from defendant, a retail establishment whose employee installed the bindings on the new skis. Two days later, plaintiff injured his left leg when he turned to avoid another skier on the novice slope and the ski bindings failed to release when he lost his balance and fell. H Thereafter, plaintiff instituted the instant action against defendant retailer. The trial as to liability proceeded on the theories of negligence, strict products liability and breach of implied warranty. The case was submitted to the jury with the direction that it return a general verdict accompanied by answers to five interrogatories (see, generally, CPLR 4111, subd [c]), delineating its finding as to liability with respect to the three theories of the case, plaintiff’s culpability, if any, and the degree thereof. After deliberation the jury rendered a verdict in plaintiff’s favor, finding defendant liable for breach of warranty, by answering in the affirmative the propounded question “Was the ski equipment defective, when sold in that it was not reasonably fit for the ordinary purpose for which it was to be used and was that defect a proximate cause of
