Opinion
Argued November 13, 1984
Decided December 11, 1984
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Reuben K. Davis, J.
Norman A. Palmiere for appellants.
Margaret A. Catillaz for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the case remitted to that court for consideration of issues raised by respondent on its appeal to but not reached by that court.
On appeal to it by Red Diamond Dry Ice CO[2] Corp. (respondent in our court) from a judgment of Supreme Court entered on a jury verdict in plaintiffs' favor, the Appellate Division reversed the judgment on the law and facts and dismissed the complaint against Red Diamond. This disposition was based on its conclusion "that plaintiffs have failed to prove a cause of action against [Red Diamond]" because the court found that "[i]t is undisputed that the warnings given by Red Diamond to Skippy were communicated by Skippy to decedent. Under these circumstances, we conclude that if there were any negligence on the part of Red Diamond it was not the proximate cause of decedent's death" (99 A.D.2d, at p 660).
The Appellate Division was in error in its finding with respect to the giving of warnings by Skippy to the decedent. The issue is contested by plaintiffs and the only evidence in the record that such warnings had been given is to be found in the testimony of George Jesmer, president and general manager of Skippy and an interested witness. The jury in reaching its verdict in favor of plaintiffs against Red Diamond could have declined to credit this testimony, in which event there would be no support for the pivotal factual predicate on which the reversal in the Appellate Division was grounded. Moreover, under the charge given by the trial court the jury could have found Red Diamond liable irrespective of whether Skippy Ice Cream adequately warned the decedent or negligently failed to do so.
Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for its consideration of legal and factual contentions advanced by Red Diamond but not reached on its appeal there. We pass on no other issue.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS, and KAYE concur.
Order reversed, with costs, and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein.