Opinion
April 26, 1991
Appeal from the Supreme Court, Erie County, Sedita, J.
Present — Callahan, J.P., Doerr, Green, Balio and Lowery, JJ.
Judgment unanimously reversed on the law with costs and new trial granted. Memorandum: Plaintiff is entitled to a new trial because the charge given by the court was confusing, incoherent and incomplete with respect to the applicable legal principles (see, Cumbo v. Valente, 118 A.D.2d 679; Lopato v. Kinney Rent-A-Car, 73 A.D.2d 565; Biener v. City of New York, 47 A.D.2d 520; see also, Runfola v. Bryant, 127 A.D.2d 972). Supreme Court failed to give a specific charge on comparative negligence, intermingled the principles of comparative negligence and proximate cause, and interjected elements of contributory negligence into the charge, thereby implying to the jury that, if plaintiff's decedent had been negligent in any way, there could be no recovery. In the circumstances of this case, it is doubtful that the jury gave fair consideration to plaintiff's claims (see, Theodoropoulos v. New York City Health Hosps. Corp., 90 A.D.2d 792; cf., Binder v. Supermarkets Gen. Corp., 49 A.D.2d 562).
We have examined plaintiff's other contentions and find them to be without merit.