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.