Toner v. Arnold Constable ( 1969 )

Per Curiam.

We believe it was a proper exercise of discretion, in setting aside the verdict in plaintiff’s favor, to order a new trial rather than dismiss the complaint, and thus afford plaintiff “ the opportunity — to demonstrate the causal connection between the negligence found and the injury sustained.” This was the course adopted in Ravo v. Lido (17 A D 2d 476). Since, however, the liability of defendant (Sophia), if so established on a new trial, would not necessarily exclude liability over of the third-party defendant Ozon Products, Inc. (Ozon) on Sophia’s third-party complaint against Ozon, it was error not to set aside the verdict in its entirety and to order a new trial as to all parties.

The order should be modified to the extent of setting aside the verdict in its entirety and ordering a new trial, with $10 costs to plaintiff against defendant and with $10 costs to abide the event to defendant third-party plaintiff against third-party defendant.

Concur — Steeit, J. P., Quinn and Hoestadter, JJ.

Order modified, etc.