Hicksville Metal Products, Inc. v. Jeremiah Burns, Inc.

Appeal from a judgment of Supreme Court, Nassau County (Vitale, J.), entered May 25, 1979, which dismissed the complaint following (1) the granting at the close of the plaintiff’s case, that branch of the defendants’ motion which was to dismiss the second and third causes of action, and (2) a jury verdict in defendants’ favor as to the first cause of action. Judgment modified by deleting the provision thereof dismissing the complaint and substituting a provision dismissing the second and third causes of action. As so modified, judgment affirmed and a new trial is granted with respect to the first cause of action, with costs to abide the event. There was no evidence from which the jury could possibly find that plaintiff was contributorily negligent and no charge should have been given thereon. Mangano, J.P., Weinstein, Thompson and Bracken, JJ., concur.