Opinion
April 28, 1998
Appeal from the Supreme Court, New York County (Marylin Diamond, J.).
We do not reach appellant's contention in reliance upon Eaves Brooks Costume Co. v. Y.B.H. Realty Corp. ( 76 N.Y.2d 220) that its duty extended no further than the cab company with whom it contracted to install the taxi meter, and, concomitantly, that it had no duty to plaintiff passenger with whom it was not in privity. The argument is raised for the first time on appeal and is not appropriately addressed in the absence of a fully developed factual record ( see, City of New York v. Stack, 178 A.D.2d 355, lv denied 80 N.Y.2d 753). Among the considerations relevant to a determination of the extent of defendant-appellant's duty as an installer of taxi meters are "the reasonable expectations of the defendants and the reasonable reliance of the plaintiff" ( Hagan v. Comstat Sec., 214 A.D.2d 435, 436) and the magnitude of the defendant's contractual undertaking ( supra). As the matter is presented, however, there are no facts of record to inform our consideration of these and other relevant issues.
Respecting those issues that are properly preserved for our review, we disagree with defendant-appellant's contention that the opinion of plaintiffs' expert was based on facts found neither in the evidence nor in the expert's personal experience ( see, Herzog v. Miller, 236 A.D.2d 517, 518), and we find no basis to disturb the trial court's denial of the motion to set aside the verdict since the verdict was not "`"palpably wrong"'" ( Johnson v. Oval Pharmacy, 165 A.D.2d 587, 593, lv denied 78 N.Y.2d 859).
We modify the judgment to reflect that, pursuant to CPLR article 16, since no party has been found more than 50% at fault, each responsible party should be held accountable only for that party's equitable share of the amount assessed for non-economic loss. We further modify the judgment to allow a $7,671.12 credit in favor of defendant Ronart for economic loss inasmuch as defendant Neon has not asserted a claim and has ceased making first-party payments. Inasmuch as nothing in the record contradicts the trial court's statement that in a conference "the parties agreed that the amounts stated in the judgment are correct", we find no reason to disturb any other aspect of the judgment.
Concur — Sullivan, J.P., Rosenberger, Nardelli, Rubin and Andrias, JJ.