Opinion
February 17, 1987
Appeal from the Supreme Court, Kings County (Goldberg, J.).
Ordered that the cross appeal is dismissed as abandoned, and on the further ground that the Port Authority is not aggrieved by the interlocutory judgment since it dismisses the third-party complaint as against it (CPLR 5511); and it is further,
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the interlocutory judgment is affirmed; and it is further,
Ordered that the plaintiffs and the Port Authority appearing separately and filing separate briefs, are awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the interlocutory judgment (CPLR 5501 [a] [1]).
We find that the evidence supported the jury verdict finding Otis Elevator negligent. A jury may infer negligence in the maintenance of an elevator from evidence of prior malfunctions (see, Rogers v. Dorchester Assocs., 32 N.Y.2d 553, 557, 559). In addition, the trial court did not err in instructing the jury as to the doctrine of res ipsa loquitur (see, Weeden v. Armor Elevator Co., 97 A.D.2d 197, 205, 207; see also, Dermatossian v New York City Tr. Auth., 67 N.Y.2d 219, 226; Corcoran v. Banner Super Mkt., 19 N.Y.2d 425, 430, remittitur amended 21 N.Y.2d 793). We also note that the trial court did not err in dismissing the third-party complaint of Otis Elevator against the Port Authority (see, Rogers v. Dorchester Assocs., supra, at 562-563; Sirigiano v. Otis Elevator Co., 118 A.D.2d 920).
Finally, although some of the comments made by the plaintiffs' counsel may be viewed as improper, they do not require a new trial, especially in view of the trial court's many prompt curative instructions (see, Hiliuk v. Daponte, 100 A.D.2d 612). Brown, J.P., Rubin, Kooper and Sullivan, JJ., concur.