Opinion
August 11, 1986
Appeal from the Supreme Court, Queens County (Graci, J.).
Appeal from the order dismissed, without costs or disbursements (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
Judgment modified, on the law and the facts, and as an exercise of discretion, by (1) adding thereto a provision reinstating the third-party complaint, severing the third-party action, and remitting the matter to the Supreme Court, Queens County, for a trial thereof, and for an apportionment of damages pursuant to Dole v Dow Chem. Co. ( 30 N.Y.2d 143) in the event it is determined by the trier of facts that the defendants third-party plaintiffs and the third-party defendant were liable for the damages suffered by the plaintiffs, and (2) deleting therefrom the decretal paragraphs awarding the plaintiffs Marvin Charney and Anne Marie Charney damages in the principal sums of $2,813,430 and $275,000 respectively, and substituting therefor a provision granting a new trial on the issue of damages unless, within 20 days after service upon the plaintiffs of a copy of the order to be made hereon, together with notice of entry, the plaintiffs shall serve and file in the office of the Clerk of the Supreme Court, Queens County, written stipulations consenting to decrease the awards of damages from the principal sums of $2,813,430 and $275,000 to the principal sums of $1,200,000 and $175,000, respectively, and to the entry of an amended judgment accordingly, and as so modified, judgment affirmed, without costs or disbursements. In the event that the plaintiffs so stipulate, then the judgment, as so modified, reduced and amended is affirmed, without costs or disbursements. Order modified accordingly. The findings of the fact regarding the liability of the defendants to the plaintiffs are affirmed.
The plaintiffs commenced the instant action to recover damages for the injuries the plaintiff Marvin Charney sustained when he tripped on a loose tile on the premises owned by the defendants third-party plaintiffs, and leased by his employer, the third-party defendant Consolidated Edison Company of New York, Inc. (hereinafter Con Ed). At the close of the entire case on the issue of liability, the court dismissed the third-party complaint upon Con Ed's motion. In so ruling, the trial court erred. The jury could have found from the evidence, viewed in a light most favorable to the third-party plaintiffs (see, e.g., Rhabb v New York City Hous. Auth., 41 N.Y.2d 200; Kahn v Gates Constr. Corp., 103 A.D.2d 438), inter alia, that Con Ed, the third-party defendant, breached its own duty to the plaintiffs (Putnam v Stout, 38 N.Y.2d 607; Labor Law § 200), thereby contributing to the accident. Consequently, a new trial has been granted as to the third-party complaint against Con Ed. If the trier of facts determines that the defendants and the third-party defendant were at fault and contributed to the accident, an apportionment of damages would then have to be made pursuant to Dole v Dow Chem. Co. ( 30 N.Y.2d 143, supra; see also, Howell v Bennett Buick, 52 A.D.2d 590; Mickens v Marascio, 58 N.J. 569, 279 A.2d 666, 669; Keitz v National Paving Contr. Co., 214 Md. 479, 136 A.2d 229, 231-235; cf. Cooperman v Ferrentino, 37 A.D.2d 474, 479).
Finally, the damages awarded to the plaintiffs were excessive to the extent indicated. Lazer, J.P., Mangano, Lawrence and Eiber, JJ., concur.