Opinion
Argued May 11, 1999
June 21, 1999
In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Barron, J.), dated May 28, 1998, as denied its cross motion pursuant to CPLR 4404 to set aside the jury verdict in favor of the plaintiffs and against it.
Jackson Consumano (Mauro Goldberg, Great Neck, N Y [Kenneth Mauro, Caryn L. Lilling, and Christopher Simone] of counsel), for appellant.
Lurie Flatow, P.C., New York, N.Y. (Sanford S. Lurie of counsel), for respondents.
DAVID S. RITTER, J.P., MYRIAM J. ALTMAN, GABRIEL M. KRAUSMAN, ANITA R. FLORIO, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, the defendant's cross motion is granted, and a new trial is granted, with costs to abide the event.
The trial court erred in charging res ipsa loquitur. The proof at trial established that the accident could have occurred in the absence of negligence ( see, Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219; Cacciolo v. Port Auth. of N Y N.J., 186 A.D.2d 528). Since it cannot be determined whether the jury based its finding of liability on that erroneous theory, a new trial is necessary ( see, Fein v. Board of Educ., 305 N.Y. 611; Ryan v. City of New York, 83 A.D.2d 574).