dissents and votes to affirm the judgment, with the following memorandum: In this action to recover damages for personal injuries sustained as a result of an exploding soft drink bottle, the jury expressly found no negligence on anyone’s part but, on the breach of warranty claim, found liability only with respect to a third-party defendant, and, therefore, the complaint was dismissed. Although the charge, to which no exception was taken, contained some inaccuracies, as shall be explained, they were not prejudicial as a matter of law. Accordingly, while it is unfortunate that the plaintiff’s injuries will go uncompensated, I perceive no basis to direct a new trial in the exercise of our interest of justice powers (see Department of Social Servs. v Trustum C. D., 97 AD2d 831) and cast my vote for affirmance.
The salient facts are straightforward. On July 18,1973, plaintiff was shopping with his mother and sister at a Food Fair supermarket. The mother brought her groceries, including a bottle of Coca Cola, to the checkout counter, and, while the cashier was placing the bottle of soda in a shopping bag, it burst and injured the plaintiff.
The complaint sets forth two causes of action against Food Fair, the only defendant. The first sounds in negligence, the second, breach of implied warranty. Food Fair impleaded the bottler, Coca Cola, for indemnification, who, in turn, impleaded the manufacturer for indemnification. The fourth-party action was discontinued.
At trial, the court instructed the jury as to each of the elements of the two causes of action, as well as to the apportion*585ment of liability between Food Fair and Coca Cola. Unfortunately, the charge characterized both as “defendants”. No objection was registered by plaintiff’s counsel. The jury expressly found no negligence by either Food Fair or Coca Cola, and, as to breach of warranty, found no liability by Food Fair, but “one hundred percent” against Coca Cola Company.
The trial court gave plaintiff’s counsel every opportunity to submit authority for resubmission of the case to the jury. Counsel, however “want[ed] to go home”. Nonetheless, based upon conversations with “expert lawyers”, counsel returned in the afternoon, but still offered no tenable theory for overturning the verdict. Because Coca Cola was not a primary defendant, the complaint was dismissed and plaintiff recovered nothing.
The majority holds that the trial court’s characterizations of both Food Fair and Coca Cola as “defendants” constitutes such a fundamental error that reversal in the interest of justice is warranted. I disagree.
First, it is self-evident that the purported confusion could have no effect on the verdict with respect to negligence. As indicated, the jury found no negligence on the part of either “defendant” and, inasmuch as this issue presented a plain question of fact, that verdict is impervious to attack in this court.
Nor do I perceive how the error could infect the breach of warranty verdict. Whatever may be the rule elsewhere (see Prosser, Torts [4th ed], § 95, p 637), it appears that in New York no cause of action for breach of implied warranty lies where plaintiff is not in privity with defendant, at least in actions, such as here, where the pre-1975 version of the Uniform Commercial Code governs (Martin v Dierck Equip. Co., 43 NY2d 583; Siegel, NY Prac, § 41, 1981-1982 Supp, p 10). Only negligence and strict liability in tort, a cause of action not asserted here, are available (Martin v Dierck Equip. Co., supra).
In any event, in Day v Grand Union Co. (280 App Div 253, 254, affd 304 NY 821), then Justice Bergan explained that no breach of warranty of fitness may be implied in situations like that before us “because there was no consummated contract of sale. Plaintiff had not yet purchased the [soda] and the store had not sold it” (but see Sanchez-Lopez v Fedco Food Corp., 27 Misc 2d 131). While it is possible that this decision will be reconsidered when the issue again reaches the Court of Appeals (see 1 NY PJI 2d, 1983 Supp, p 137), I find Day to be a controlling precedent until that court does so.
In Department of Social Servs. v Trustum C. D. (supra), we held that our interest of justice powers should be exercised only to correct fundamental error, not simply to give an unsuccessful *586litigant a second turn at bat. Plaintiff here lost fair and square and the direction of a new trial, it seems to me, operates as an injustice to the defendant.
The judgment should be affirmed.