Opinion
Argued October 26, 1999
January 18, 2000
In an action to recover damages for personal injuries, the defendant appeals from an interlocutory judgment of the Supreme Court, Suffolk County (D'Emilio, J.), entered March 3, 1999, which, upon a jury verdict, is in favor of the plaintiffs and against her on the issue of liability.
Frank V. Merlino (Sweetbaum Sweetbaum, Lake Success, N Y [Marshall D. Sweetbaum] of counsel), for appellant.
Sonin Genis (Pollack, Pollack, Isaac DeCicco, New York, N Y [Robert J. Genis and Brian J. Isaac] of counsel), for respondents.
DAVID S. RITTER, J.P., LEO F. McGINITY, HOWARD MILLER and SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the interlocutory judgment is reversed, on the facts and as a matter of discretion, and a new trial is granted, with costs to abide the event.
Under the circumstances of this case, the jury verdict finding that the plaintiff was negligent, but that his 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, Bahadur v. G.C. Constr. Corp., 265 A.D.2d 514 [2d Dept., Oct. 25, 1999]; Stanton v. Gasport View Dairy Farm, 244 A.D.2d 893 ).
RITTER, J.P., McGINITY, H. MILLER, and FEUERSTEIN, JJ., concur.