From Casetext: Smarter Legal Research

DePasquale v. Morbark Industries, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Oct 26, 1998
254 A.D.2d 450 (N.Y. App. Div. 1998)

Opinion

October 26, 1998

Appeal from the Supreme Court, Westchester County (Rudolph, J.).


Ordered that on the Court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted ( see, CPLR 5701 [c]); and it is further,

Ordered that the order is affirmed insofar as appealed from, with costs.

The trial court did not improvidently exercise its discretion in directing a new trial. The jury's special verdict on liability was internally inconsistent ( see, CPLR 4111 [c]). The jury found that three alleged design defects in the defendant's wood chipper had not constituted "a substantial factor in causing plaintiff's accident", yet it concluded that the defendant had been 20% at fault in the happening of the accident. In addition, notes from the jury during its deliberations evidenced persistent confusion on the issue of "causation". Under these circumstances, a new trial was the appropriate remedy ( see, e.g., Marine Midland Bank v. Russo Produce Co., 50 N.Y.2d 31, 40; Cortes v. Edoo, 228 A.D.2d 463, 465; Sluzar v. Nationwide Mut. Ins. Co., 223 A.D.2d 785, 786; Trotter v. Johnson, 210 A.D.2d 946, 947; Vera v. Bielomatik Corp., 199 A.D.2d 132; McStocker v. Kolment, 160 A.D.2d 980, 981; Leal v. Simon, 147 A.D.2d 198, 205-206).

Joy, J. P., Friedmann, Krausman and Luciano, JJ., concur.


Summaries of

DePasquale v. Morbark Industries, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Oct 26, 1998
254 A.D.2d 450 (N.Y. App. Div. 1998)
Case details for

DePasquale v. Morbark Industries, Inc.

Case Details

Full title:FRANK DePASQUALE, Respondent, v. MORBARK INDUSTRIES, INC., Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 26, 1998

Citations

254 A.D.2d 450 (N.Y. App. Div. 1998)
678 N.Y.S.2d 777

Citing Cases

Sabarese v. Bd. of Educ. of the Tuxedo Union Free Sch. Dist.

In this case, the jury's initial verdict was internally inconsistent in that it attributed 25% of the fault…

Viviani v. City of Yonkers

This was error. The verdict was inconsistent and demonstrated substantial juror confusion that should have…