Opinion
July 10, 1967
On remittitur from the Court of Appeals ( 19 N.Y.2d 203), judgment of the Supreme Court, Queens County, entered January 17, 1964, reversed, insofar as appealed from, on the facts, and new trial granted as between plaintiff and defendant Rose Levine, with costs to abide the event. In our opinion, the jury's verdict was against the weight of the evidence. Beldock, P.J., Christ and Rabin, JJ., concur; Benjamin, J. concurs in reversal of the judgment but votes to reinstate the jury's verdict, in plaintiff's favor, with the following memorandum: When the Court of Appeals reversed our previous affirmance of the trial court's judgment setting aside the jury verdict for plaintiff as against defendant Rose Levine, and dismissing the complaint as against her ( 25 A.D.2d 556), it did so on two grounds, namely, (a) that the proof was sufficient to support a finding by the jury that said defendant was responsible for the placing of the skid "in this perilous position in the hallway" (p. 206) where the accident occurred, and (b) that it was improper to exclude proffered testimony that said defendant's husband and "general manager" had admitted responsibility for the placement of the skid in that position. In light of the determination by the Court of Appeals that the proof at the trial was sufficient to support the jury verdict for plaintiff against defendant Rose Levine, that verdict should be reinstated, and a new trial is neither required nor warranted. In my view, the decision of the Court of Appeals cannot be read as permitting any other result.