Iannone v. Cayuga Construction Corp. , 411 N.Y.S.2d 599 ( 1978 )

Kupferman, J. (concurring).

I would remand for a new trial on damages only, with respect to the first and third causes of action, there being some elements thereof which are questionable in view of the requirement of proximate cause in a blasting case. (See Spano v Perini Corp., 25 NY2d 11.) However, there would be little advantage to be gained by eliminating the need to find the obvious absolute liability and, in order to resolve the problem, I join Judges Lupiano and Lane. I would dismiss the second and fourth causes of action. As I see it, the so-called "negligence before blasting” is not a new factor but rather part of the configuration. There was sufficient evidence for the jury to determine liability, and, as the opinion with which I am concurring indicates, the negligence allegations are redundant in the light of the absolute liability conclusion warranted in this matter. The rule of Lebron v New York City Tr. Auth. (44 NY2d 782), does not apply.