Purnell v. New York City Housing Authority

—In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Barron, J.), dated May 28, 1998, as denied its cross motion pursuant to CPLR 4404 to set aside the jury verdict in favor of the plaintiffs and against it. Ordered that the order is reversed insofar as appealed from, on the law, the defendant’s cross motion is granted, and a new trial is granted, with costs to abide the event. The trial court erred in charging res ipsa loquitur. The proof at trial established that the accident could have occurred in the absence of negligence (see, Dermatossian v New York City Tr. Auth., 67 NY2d 219; Cacciolo v Port Auth., 186 AD2d 528). Since it cannot be determined whether the jury based its finding of liability on that erroneous theory, a new trial is necessary (see, Fein v Board of Educ., 305 NY 611; Ryan v City of New York, 83 AD2d 574). Ritter, J. P., Altman, Krausman and Florio, JJ., concur.