Opinion
April 30, 1991
Appeal from the Supreme Court, New York County (Loren Brown, J.).
Plaintiff alleged that he sustained an ear injury as a result of a fireworks explosion in front of defendant restaurant located at 40 East Broadway during celebration festivities of the Chinese New Year in 1988. Plaintiff was an invited guest at a party given at the restaurant by defendant Chen-Lieh Tang, a corporate officer of the restaurant.
Contrary to plaintiff's contention, he was not entitled to a directed verdict on the ground that defendants admittedly possessed fireworks without having obtained the requisite permit (see, Penal Law § 405.00). Having failed to move for a directed verdict on the issue of liability in this bifurcated trial, plaintiff must be deemed to have admitted that an issue of fact was presented for determination by the jury. (Gutin v. Mascali Sons, 11 N.Y.2d 97, 98.)
In any event, a directed verdict would have been unwarranted, as an issue of fact existed as to whether defendants' failure to obtain a fireworks display permit was a proximate cause of the events which produced the claimed injury. (Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, rearg denied 52 N.Y.2d 784, 829.) Mere violation of the statute does not give rise to an inference of negligence without proof that a party has sustained injury proximately caused by the breach. (Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172.) Since the jury's verdict is adequately supported, we will not disturb it. (Niewieroski v. National Cleaning Contrs., 126 A.D.2d 424, lv denied 70 N.Y.2d 602.)
Plaintiff is not entitled to a new trial simply because the trial court refused to separately charge statutory liability and common law negligence. Examination of the subject interrogatory, to which plaintiff did not except, in the context of the court's charge indicates that the jury could not have been substantially confused so as to be unable to reach a proper determination upon adequate consideration of the evidence. (Cf., Booth v. Penney Co., 169 A.D.2d 663, 665.)
We have considered plaintiff's remaining claims and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Kupferman, Ross and Smith, JJ.