Bush v. International Business Machines Corp.

Judgment, Supreme Court, New York County (Stephen Crane, J., and a jury), entered August 21, 1995, in favor of defendants and against plaintiff, dismissing the complaint, and bringing up for review an order, same court and Justice, entered on or about August 9, 1995, which, in a products liability action for personal injuries allegedly sustained as a result of plaintiff’s use of keyboard equipment manufactured by defendants, denied plaintiff’s motion for a new trial pursuant to CPLR 4404 (a), unanimously affirmed, without costs. The appeal from the order is unanimously dismissed, without costs, as subsumed within the appeal from the judgment. With respect to the 1981 report excluded from evidence, the trial court properly found that its probative value was outweighed by its potential for confusing the jury and causing other prejudice, concerned as the report was with a very different machine from that at issue herein (see, Cramer v Kuhns, 213 AD2d 131, 137, lv dismissed 87 NY2d 860; Locker v Ford Motor Co., 91 AD2d 510, 512). With respect to defendant-respondent’s belated production of a six-hour video tape depicting actual usage of the machine in issue, the Trial Judge appropriately " 'look[ed] to his own common sense, experience and sense of fairness’ ” in deciding that it was not "likely that the verdict ha[d] been affected” by the delay in disclosure, and we see no reason to disturb that finding (Micallef v Miehle Co., 466 39 NY2d 376, 381). Concur—Sullivan, J. P., Rosenberger, Kupferman, Tom and Mazzarelli, JJ.