Opinion
February 25, 1985
Appeal from the Supreme Court, Kings County (Hirsch, J.).
Judgment affirmed, insofar as appealed from, without costs or disbursements.
"A Trial Judge's decision to set aside a verdict as contrary to the weight of the evidence should be viewed on appellate review with liberality in recognition of the fact that such a determination `involves what is in large part a discretionary balancing of many factors'" ( Durante v Frishling, 81 A.D.2d 631, citing Cohen v Hallmark Cards, 45 N.Y.2d 493, 499). Here, the trial court properly set aside that part of the verdict which apportioned 50% of the liability to defendant Gomez, as there was virtually no evidence on the record from which the jury could have reasonably concluded that Gomez had been given any notice of the dangerous condition of the boiler and had failed to correct it. Similarly, the court properly dismissed defendant Vijax's fourth-party action against the Nancy Beth Theatre Corp., as it appeared from the evidence that the latter called Vijax to repair the boiler each time it malfunctioned, and the defects in the boiler being latent, only Vijax knew or should have known that its repairs had not rendered the boiler safely operable. Mangano, J.P., Bracken, Weinstein and Niehoff, JJ., concur.