Opinion
May 22, 1972
In an action to recover damages for personal injuries based on negligent design against both defendants and breach of warranty of fitness for use against defendant Printers Machinery Maintenance, Inc., plaintiff appeals from a judgment of the Supreme Court, Kings County, entered August 3, 1971, in favor of the defendants upon the trial court's dismissal of the complaint at the end of the case at a jury trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. No questions of fact were presented on this appeal. In our view the evidence raised a question of fact as to whether the design of the machine was defective and whether the defect was latent or patent. Accordingly, it was error to dismiss the complaint. We do not take a position as to whether the alleged defect was latent or patent, but merely conclude that the evidence was sufficient to raise an issue for the jury to determine. Hopkins, Acting P.J., Munder, Martuscello, Latham and Shapiro, JJ., concur.