Margolin v. Friedman

57 A.D.2d 763, 394 N.Y.S.2d 423, 1977 N.Y. App. Div. LEXIS 11916

Opinion

Judgment as to liability, Supreme Court, New York County, entered June 8, 1976, after trial to a jury,- reversed, on the law, to the extent appealed from, the complaints against the defendants-appellants 670 Coney Island Avenue, Inc., and Crown Car Wash, Inc., dismissed, and the action severed as to them, and the matter remanded to Trial Term, New York County, for trial as against defendant Friedman on the issue of damages. Appellants shall recover of respondent $60 costs and disbursements of this appeal. There was no basis whatever in the evidence for any finding that the accident at the exit of the car wash was caused by anything other than loss of control of the nonappealing defendant’s vehicle when, as he admitted, he stepped on the accelerator instead of the brake after detachment from the facility’s towing mechanism. Neither design of the place, absence of a warning sign, nor maintenance of the place was shown to have been a causative factor. Defendants-appellants’ motions to dismiss at the close of plaintiff’s evidence should have been granted. Concur — Birns, Lane and Markewich, JJ.; Kupferman, J. P., dissents and would affirm on the opinion of Spiegel, J.