Lawton, J. (dissenting). I respectfully dissent for the reasons stated at Supreme Court. I would add only that the initial determination with respect to the percentage of market share of each defendant is, as the majority states, an alternative method of identifying the defendant whose product injured the plaintiffs. Because this is a narrow preliminary issue that involves a party’s status, there is no constitutional right to a jury trial (see, Matter of Erlanger, 136 Misc 784, affd 229 App Div 778; see also, Shippey v Berkey, 6 AD2d 473). The right to trial by jury provided in "Section 425, C.P.A. [now CPLR 4101 (1)] relates merely to an issue of fact in the action proper and does not apply * * * to this preliminary issue” (Bux v Robinson, 199 NYS2d 619, 621, revd on other grounds 216 NYS2d 2, application denied 13 App Div 912; see, 73 NY Jur 2d, Jury, § 8). The court’s determination of the collateral issue of market share does not compromise plaintiffs’ right to a jury trial because a jury must still pass upon all the *357essential elements in each of plaintiffs’ causes of action, viz., defect, causation and damages.
Pine and Davis, JJ., concur with Boomer, J.; Lawton, J., dissents and votes to affirm in an opinion in which Doerr, J. P., concurs.
Order reversed, on the law, with costs, and motion granted.