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Supreme Court, Appellate Division, First Department, New York.


TOTAL AVIATION SERVICES, INC., Defendant/Third-Party Plaintiff-Appellant, v. KEY AIRLINES, INC., Third-Party Defendant-Respondent.

Decided: October 27, 1998

Before SULLIVAN, J.P., ROSENBERGER, NARDELLI, WILLIAMS and ANDRIAS, JJ. Ira Bezack, for Defendant/Third-Party Plaintiff-Appellant. Marguerite D. Peck, for Third-Party Defendant-Respondent.

Judgment, Supreme Court, New York County (Louis Benza, J., and a jury), entered September 8, 1997, which, in an action to recover property damages to a tow tractor leased by plaintiff's subrogor to defendant aircraft maintenance company, insofar as appealed from, dismissed defendant's third-party action against third-party defendant airline carrier upon a jury finding that the damages were caused by defendant's negligence, unanimously affirmed, with costs.

Defendant's claim that the verdict was inconsistent in finding it negligent and its employee not negligent is unpreserved for review, no such claim having been made before the jury's discharge (see, Gribbon v. Missionary Sisters of Sacred Heart, 244 A.D.2d 185, 664 N.Y.S.2d 8).   In any event, the verdict was neither inconsistent nor against the weight of the evidence, which, fairly interpreted, permit findings that defendant was negligent in failing to equip its tow tractor with snow chains and to instruct its employee in the operation of the vehicle in the snowy, night-time conditions in which it told him to drive, and that the employee was not negligent in losing control of the vehicle in such conditions and without such equipment.