Bradley v. Earl B. Feiden, Inc.

Lahtinen, J. (dissenting).

We respectfully dissent. In the special verdict sheet and its charge to the jury (which elicited no objection), Supreme Court tied a finding regarding the defrost timer to the products liability cause of action, but did not require a finding about the defrost timer for the breach of implied warranty claim. Question number two of the special verdict sheet instructed the jurors that, if they did not find the defrost timer was defective, then they nevertheless should proceed to question number four, which asked: “Did [defendant] General Electric [Company, Inc. (hereinafter GE)] breach its warranty in that the refrigerator/freezer was not reasonably fit for its intended purpose?” The jurors followed these instructions, they sought pertinent clarification, and they rendered a rational verdict supported by the law as charged to them and the facts (after credibility determinations) presented at trial. Accordingly, we would affirm Supreme Court’s denial of defendants’ motions for a directed verdict and judgment notwithstanding the verdict.

*715Plaintiffs pleadings and proof identified the new refrigerator as the origin of the fire and specifically identified the defrost timer as the cause of the fire. While the jury rejected plaintiffs theory that the defrost timer was the cause of the fire, it accepted the testimony from the fire investigator and the forensic consultant, the only witnesses who performed on-site investigations, that placed the source of the fire in the freezer unit of the refrigerator and excluded all causes of the fire not attributable to defendants. Such proof was sufficient to satisfy plaintiffs burden of proof in order to establish a prima facie case for breach of the implied warranty of fitness and merchantability (see UCC 2-314 [2] [c]; Denny v Ford Motor Co., 87 NY2d 248, 258-259 [1995]; Wojcik v Empire Forklift, Inc., 14 AD3d 63, 66 [2004]). Indeed, such proof would have satisfied plaintiffs burden in establishing his strict products liability cause of action without proof that the defrost timer was defective (see Speller v Sears, Roebuck & Co., 100 NY2d 38, 41-43 [2003]; Caprara v Chrysler Corp., 52 NY2d 114, 123 [1981]; Halloran v Virginia Chems., 41 NY2d 386, 388 [1977]; Brown v Borruso, 238 AD2d 884, 885 [1997]).

Nor do we believe that the record reflects that defendants tailored their defense to plaintiffs allegation of the specific defect in the defrost timer. Defendants’ expert not only attacked plaintiffs theory of a specific defect in the defrost timer, but also testified extensively about “arc mapping” and fire patterns to support his opinion that the fire originated, not in the refrigerator, but in a can opener plugged into an outlet in an area away from the refrigerator. The fact that there were two theories in play was further tacitly acknowledged by defendants’ counsel in his motion to dismiss at the close of all proof when he argued that the evidence was inadequate for “a Q]ury to find that this fire originated in this refrigerator or that it originated because of a defect in the timer, defrost timer.”

The jurors deliberated, they sought a read-back of witnesses’ testimony, they deliberated further, and then returned with the following question: “For us to find for the Plaintiff, do we have to agree that the defrost timer was at fault, or do we just have to say that the origin of the fire was in the freezer?” Supreme Court conferred with the attorneys off the record, it reread the original charge to the jury, and added by way of “clarification]” that if the jury did not find for plaintiff on the products liability claim it “must still proceed” and address the breach of war*716ranty claim.1 The record reveals that the jurors followed Supreme Court’s instructions and rendered a verdict supported by a valid line of reasoning and permissible inferences.2

Finally, we believe that GE’s motion for contractual indemnification from third-party defendant Mid-South Electronics, Inc. should have been denied, and Mid-South’s motion to dismiss the third-party action against it granted. Mid-South’s role was limited to assembling the defrost timer (which was manufactured by third-party defendant North American Sankyo Corporation) into a bracket control assembly. Since the jury specifically rejected the defrost timer as a cause of the fire, there was no basis under the contract to require Mid-South to indemnify GE in any respect (see generally Hooper Assoc. v AGS Computers, 74 NY2d 487, 491-492 [1989]; Viacom Inc. v Philips Elecs. N. Am. Corp., 16 AD3d 215, 215-216 [2005]; Szafranski v Niagara Frontier Transp. Auth., 5 AD3d 1111, 1113 [2004]; Brasch v Yonkers Constr. Co., 306 AD2d 508, 510-511 [2003]).

Mugglin, J., concurs. Ordered that the order and judgment is modified, on the law, without costs, by reversing so much thereof as denied defendants’ motion to set aside the verdict and dismiss the complaint; said motion granted and complaint and third-party complaint dismissed; and, as so modified, affirmed. Ordered that the cross appeal by plaintiff is dismissed, without costs.

. The “argu[ment] at length” by defendants’ attorneys regarding the verdict sheet, which the majority refers to in its first footnote, occurred at this point, well after the jury was engaged in its deliberations.

. While we believe that the record fully supports affirming, we would note that; even if there were errors of law in the manner in which the elements of the causes of action were presented in the charge and/or the special verdict sheet, the appropriate remedy would be remittal for a new trial and not dismissal (see Fritz v White Consol. Indus., 306 AD2d 896, 898 [2003]).