Opinion
May 7, 1999
Appeal from Judgment of Supreme Court, Erie County, Pigott, Jr., J. — Negligence.
Present — Pine, J. P., Hayes, Wisner, Hurlbutt and Scudder, JJ.
Judgment unanimously affirmed without costs. Memorandum: Plaintiff appeals from a judgment entered upon a jury verdict in favor of defendant The Stanley Works and Tools Division (Stanley Works) (appeal No. 1) and an order and judgment granting the motion of defendant Cotter Company (Cotter) for a directed verdict dismissing the complaint against it (appeal No. 2). Plaintiff was injured when a small piece of metal lodged in his eye while he was watching a friend hammer a masonry nail. Plaintiff's friend was wearing protective eye wear as directed by the warning label on the hammer, which was manufactured by Stanley Works. The nails were distributed by Cotter.
Plaintiff waived his contention that Supreme Court's charge with respect to failure to warn was inadequate; the court used the language requested by plaintiff. In any event, the court properly instructed the jury on that issue ( see, Cooley v. Carter-Wallace, Inc., 102 A.D.2d 642, 648).
The court properly denied plaintiff's request to charge breach of an implied warranty. Such a warranty does not run to plaintiff, a bystander ( see, Denny v. Ford Motor Co., 87 N.Y.2d 248, 255, 259, rearg denied 87 N.Y.2d 969). The court also properly denied plaintiff's request for a missing witness charge. Plaintiff did not sustain his burden of establishing that Stanley Works failed to call an additional witness who would be expected to provide testimony favorable to plaintiff on the issue whether the hammer had a warning label when it was manufactured ( see, Coningsby v. Marabell, 214 A.D.2d 949, lv denied 86 N.Y.2d 703). Nor did the court abuse its discretion in denying plaintiff's motion made during jury-selection to amend the pleadings to allege a new theory of liability against Cotter ( see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959).
The court properly granted Cotter's motion for a directed verdict; plaintiff failed to present any evidence that the nails were defective ( see, CPLR 4404; see also, Petrovski v. Fornes, 125 A.D.2d 972, 973, lv denied 69 N.Y.2d 608). The court also properly denied plaintiff's motion to set aside the verdict as against the weight of the evidence. A fair interpretation of the evidence supports the jury's verdict ( see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498; Riggio v. New Creation Fellowship, 249 A.D.2d 942; cf., Crumb v. Fallon, 156 A.D.2d 949).