Albarello v. City of New York

Full title: JOSEPH D. ALBARELLO, Appellant, v. CITY OF NEW YORK et al., Respondents

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: May 22, 1973

41 A.D.2d 926 (N.Y. App. Div. 1973)

Opinion

May 22, 1973

Judgment, Supreme Court, Bronx County, entered on May 8, 1972, unanimously reversed, on the law and the facts, and vacated, and a new trial granted, with $60 costs and disbursements to abide the event. The jury having found for the defendant, the only question is as to certain aspects of the charge. While it is clear that in a wrongful death action, the burden of proof as to contributory negligence of the decedent is on the defendant (EPTL 11-3.2, subd. [b]; see Cruz v. Long Is. R.R. Co., 28 A.D.2d 282, 285), the court's charge lacked clarity on this point.

Concur — Markewich, J.P., Kupferman, Lane, Steuer and Tilzer, JJ.