Opinion
January 10, 1994
Appeal from the Supreme Court, Nassau County (Yachnin, J.).
Ordered that the judgment is affirmed, with costs.
Contrary to the defendant's claim, the Supreme Court properly denied its motion to dismiss based upon the plaintiff's alleged failure to prove a prima facie case. It is well settled that a motion pursuant to CPLR 4401 to dismiss for failure to establish a prima facie case should be granted only if there is no rational process by which a jury could find for a plaintiff and against a defendant upon the evidence presented (see, Kleinmunz v. Katz, 190 A.D.2d 657; Hylick v. Halweil, 112 A.D.2d 400, 401; Nicholas v Reason, 84 A.D.2d 915).
Viewing the plaintiff's evidence in a light most favorable to him (see, Kleinmunz v. Katz, supra; McCloud v. Marcantonio, 106 A.D.2d 493, 495), we find that there was sufficient evidence from which a jury could rationally find that the defendant's highway flare was defective at the time it left the defendant's control (see, Winckel v. Atlantic Rentals Sales, 159 A.D.2d 124, 126; Hylick v. Halweil, supra; Coley v. Michelin Tire Corp., 99 A.D.2d 795; Iadicicco v. Duffy, 60 A.D.2d 905, 906).
Furthermore, the Supreme Court properly required further qualifications from the defendant's expert witness (see, Werner v. Sun Oil Co., 65 N.Y.2d 839, 840; Hong v. County of Nassau, 139 A.D.2d 566; Karasik v. Bird, 98 A.D.2d 359, 362). Nor did the Supreme Court improvidently exercise its discretion in denying the defendant's applications to demonstrate a properly working highway flare or to admit its expert's slides into evidence (see, Uss v. Town of Oyster Bay, 37 N.Y.2d 639, 641; Goldner v Kemper Ins. Co., 152 A.D.2d 936, 937; Glusaskas v. Hutchinson, 148 A.D.2d 203, 209).
The Supreme Court also properly charged the jury that it could infer that a defect existed in the highway flare at the time it left the defendant's control (see, Halloran v. Virginia Chems., 41 N.Y.2d 386, 388; Winckel v. Atlantic Rentals Sales, 159 A.D.2d 124, 127, supra; Shelden v. Hample Equip. Co., 89 A.D.2d 766, 767; Fox v. Corning Glass Works, 81 A.D.2d 826; PJI 2:141.1, 2:141.2 [1992 Supp]). Any issue concerning the plaintiff's alleged misuse of the flare by lighting it while allegedly facing into the wind was relevant only to the issue of intervening or superseding cause and the apportionment of fault (see, Sheppard v. Smith Well Drilling Water Sys., 93 A.D.2d 474, 476-478). If a product is not reasonably safe for its intended or reasonably foreseeable use, culpability on the part of a plaintiff in mishandling the product or in failing to exercise reasonable care to discover the defect will not bar recovery unless that conduct is found to be the sole cause of the plaintiff's injury (see, Sheppard v. Smith Well Drilling Water Sys., supra, at 478). Upon a review of the evidence, the jury could properly find that the alleged misuse by the plaintiff was not the sole cause of his injuries and that the highway flare was defective.
We have considered the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit. Thompson, J.P., Balletta, O'Brien and Santucci, JJ., concur.