I respectfully dissent.
Permitting evidence of Chrysler’s subsequent change in design of its ball joint to be introduced in evidence was highly *525prejudicial to the defendant. Except for the fact that the record discloses that a postaccident design change was made, it is otherwise devoid of evidence that the change cured a defect in the 1969 design of ball joints found in plaintiffs car. The testimony of plaintiffs expert, Burrill, who attempted to offer testimony in that regard, was properly stricken. Mr. Burrill acknowledged that he was not an expert in the design of ball joints and that he had no knowledge of the reason for the subsequent design change or what it purported to accomplish. Lacking expertise in the matter, it was entirely appropriate to strike his testimony as speculative and irrelevant. The subsequent failure of the court to advise the jury that Mr. Burrill’s testimony had been stricken on this vital point was highly prejudicial to the defendant. This error takes on significant importance in view of the closeness of the case on the merits (Weiner v Serpa Auto Wreckers, 24 NY2d 845). A subsequent change in design is often implemented for reasons other than to cure dangerous defects. Here the jury had before it the prejudicial impact of a design change whose relevance was not established. All the evidence on design change, including that of the witness Doran, indicated that the subsequent design change was made to prevent unscrupulous and unnecessary ball joint replacements by repair garages and that, otherwise, both designs of ball joints, that contained in plaintiffs car and that subsequently used by Chrysler in its vehicles, operated in the same way. Although I concede that subsequent design change may be introduced under appropriate circumstances, such criteria have not been met in this case.
This accident occurred in 1969. Under the law then extant, plaintiff had the burden of proving his freedom from contributory negligence in the negligence action and in the products liability cause of action. In charging that the defendant had the burden of proving whether plaintiff had violated sections of the Vehicle and Traffic Law, the court misstated the law on burden of proof. This constituted prejudicial error to the defendant. The gravity of the error is amplified because of the closeness of the case.
Finally, the strict products liability verdict was inconsistent. The manufacturer, Chrysler, was held responsible for plaintiffs injuries, but the retailer, Ken Goewey Dodge, was held not to be so. The retailer as well as the manufacturer of defective goods is subject to strict liability (Mead v Warner *526Pruyn Div., Finch Pruyn Sales, 57 AD2d 340). In view of the fact that the court’s charge on burden of proof has tainted the negligence action also, this inconsistency in verdict cannot be allowed to stand.
The judgment should be reversed and a new trial ordered.
Sweeney, Kane and Main, JJ., concur with Greenblott, J. P.; Mikoll, J., dissents and votes to reverse in an opinion.
Judgment modified, on the law and the facts, and a new trial ordered as to the issue of damages only, unless, within 20 days after the service of a copy of the order to be entered herein, the plaintiff shall stipulate to reduce the amount of the verdict in his favor to $2,000,000, in which event, the judgment, as so reduced, is affirmed, with costs to plaintiff.