Opinion
June 27, 1988
Appeal from the Supreme Court, Kings County (Shaw, J.).
Ordered that the appeal and the cross appeal from the interlocutory judgment are dismissed, since the interlocutory judgment was superseded by the resettled interlocutory judgment; and it is further,
Ordered that the resettled judgment is reversed insofar as appealed and cross-appealed from, on the law and the facts, the interlocutory judgment is vacated, and a new trial is granted to the plaintiffs against Otis, Mobil, and 150 East 42nd Street Corporation, to Otis on its third-party complaint, and to Otis, Mobil and 150 East 42nd Street Corporation on any cross claims they have against each other; and it is further,
Ordered that costs are awarded to abide the event of the new trial.
Our review of the record reveals that the jury's verdict finding the defendant 150 East 42nd Street Corp. 60% at fault in the happening of the accident, and the plaintiff Frank Baxter 40% at fault in the happening of the accident was against the weight of the evidence (see, Nicastro v Park, 113 A.D.2d 129). In addition, the verdict was inconsistent in that 150 East 42nd Street Corporation was found to be at fault, while the defendants Otis and Mobil were found not be be at fault (see, Barry v Manglass, 55 N.Y.2d 803, rearg denied 55 N.Y.2d 1039). Accordingly we find that the trial court erred in awarding judgment as a matter of law against Mobil and Otis while at the same time upholding the jury's determination as to the plaintiff Frank Baxter and 150 East 42nd Street Corporation, rather than setting aside the jury verdict and ordering a new trial.
We note that the trial court erred in dismissing the third-party complaint brought by Otis against Galbraith-Ruffin Corporation. The relevant question under CPLR 1401 and Dole v Dow Chem. Co. ( 30 N.Y.2d 143) is not whether Galbraith-Ruffin Corporation owed a duty to Otis but whether Galbraith-Ruffin Corporation and Otis owed a duty to the plaintiff Frank Baxter, and by breaching their respective duties contributed to Mr. Baxter's ultimate injuries (see, Schauer v Joyce, 54 N.Y.2d 1, 5). Lawrence, J.P., Eiber, Harwood and Balletta, JJ., concur.