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MARY D. TONER v. ARNOLD CONSTABLE ET AL. (12/11/69)

NEW YORK SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT 1969.NY.43885 <http://www.versuslaw.com>; 307 N.Y.S.2d 231; 61 Misc. 2d 591 December 11, 1969 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 Toner v. Arnold Constable, 61 Misc. 2d 586, modified. Mele & Cullen (Henry J. Smith and Neil S. Davis of counsel), for appellant. Edward Kurland and Stephen G. Winn for respondent. Concur -- Streit, J. P., Quinn and Hofstadter, JJ. Author: Per Curiam


Toner v. Arnold Constable, 61 Misc. 2d 586, modified.

Concur -- Streit, J. P., Quinn and Hofstadter, JJ.

Author: Per Curiam

 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. 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.

Order modified, etc.

Disposition

Order modified, etc.

19691211

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