This testimony was elicited primarily to corroborate decedent's earlier account of a physical struggle between himself and plaintiff. Thus, it was relevant to decedent's own credibility as well as to the issue of the nature of the relationship between decedent and plaintiff during a relevant time period (see, Marshall v. Handler, 237 A.D.2d 158). Also, the isolated remark of decedent's counsel during summation that he may have misunderstood decedent in drafting a letter to plaintiff, which again was not objected to, does not rise to the level of prejudicial error or warrant reconsideration of the issues in the interest of justice (see, Superior Sales Salvage v. Time Release Sciences, 227 A.D.2d 987, 988; Dulin v. Maher, 200 A.D.2d 707, 708; cf., Reynolds v. Burghezi, 227 A.D.2d 941, 942). Counsel's comment made no statement of fact and did not vouch for his client's credibility.

Defendant's sole appellate contention, that the trial court erred in declining to charge comparative negligence, is without merit. Although comparative negligence is usually a jury question, the trial court properly decided the issue as a matter of law, since no valid line of reasoning based on the trial evidence permitted the fact finder to conclude rationally that plaintiff was negligent (see, Rountree v. Manhattan Bronx Surface Tr. Operating Auth., 261 A.D.2d 324, 327, lv denied 94 N.Y.2d 754). It was not plaintiff's burden to prove freedom from negligence by providing evidence that he used due care in walking along the icy street where he fell (see, Marshall v. Handler, 237 A.D.2d 158). Rather, it was incumbent upon defendant to demonstrate that there was an alternative, safer route that plaintiff chose not to take (see,Maguire v. Spence, 91 N.Y. 303, 305-306). Contrary to defendant's characterization of the record, plaintiff's trial testimony did not contain an explicit admission that he saw the ice before he fell.

Contrary to Defendant's contention that Plaintiffs failure to turn on lights while walking to the bathroom contributed to her injuries, it was not Plaintiffs burden to prove freedom from negligence by providing evidence that she used due care in walking along the hallway where she fell (see Schindler v Welz & Zerweck, 145 ad 532 [2d Dept. 1911]; Marshall v. Handler, 237 A.D.2d 158, [1st Dept. 1997]). Rather, it was incumbent upon Defendant to demonstrate that there was an alternative, safer route that plaintiff chose not to take, which Defendant has failed to do (see McGuire v Spence, 91 NY 303 [1883]; Rose v Brown & Williamson Tobacco Corp., 53 A.D.3d 80 [1st Dept. 2008]).