GOTOY v. CITY OF NEW YORK, 94 N.Y.2d 812 (1999)

701 N.Y.S.2d 321, 723 N.E.2d 70

ELVIS GOTOY, Respondent, v. CITY OF NEW YORK et al., Appellants, et al., Defendant.

Court of Appeals of the State of New York.Argued October 21, 1999
Decided November 23, 1999

Appeal from the Supreme Court (Melvin Barasch, J.).

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Michael D. Hess, Corporation Counsel of New York City (Jane L. Gordon and Edward F. X. Hart of counsel), for appellants.

Seligson, Rothman Rothman, New York City (Martin S. Rothman and Alyne I. Diamond of counsel), and Gallin Newman, P. C., Bronx (Philip Newman of counsel), for respondent.

MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, and a new trial granted, for reasons stated by the

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dissenters, to the extent that they concluded that the trial court erred in refusing to instruct the jury as to any alleged comparative negligence on plaintiff’s part. The police officer’s testimony regarding plaintiff’s alleged failure to follow safety instructions created a question of fact as to plaintiff’s comparative fault, which should have been submitted to the jury for its consideration.

Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur in memorandum.

Order reversed, etc.