Opinion
Submitted September 22, 1999
October 25, 1999
In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Kings County (Friedman, J.).
ORDERED that the judgment is reversed, on the facts and as a matter of discretion, and a new trial is granted, with costs to abide the event.
In the instant case, "[t]he jury's initial finding that [the injured plaintiff's] negligence was not a proximate cause of the accident was inconsistent with the finding that [he] was [30%] at fault" (see, Cortes v. Edoo, 228 A.D.2d 463, 465 ). The trial court did not err in instructing the jury to further consider its answers and verdict (see, CPLR 4111[c]; cf., Cortes v. Edoo, supra).
We agree with the appellant that under the circumstances of this case, the jury's finding that the injured plaintiff was negligent, but that such negligence was not a proximate cause of the accident, was against the weight of the evidence (see, Nicastro v. Park, 113 A.D.2d 129, 134 ; see also, Stanton v. Gasport View Dairy Farm, 244 A.D.2d 893 ). Thus, a new trial is granted.
MANGANO, P.J., RITTER, JOY, McGINITY, and SMITH, JJ., concur.