DECISION ORDER
ORDERED that the judgment is reversed, as an exercise of discretion, with costs, and a new trial is granted on all issues.
The plaintiff Bernard J. Rudolf (hereinafter the plaintiff) allegedly sustained injuries while crossing Sunrise Highway at the intersection with Hewlett Avenue in Merrick, Long Island, when he was hit by a car driven by the defendant Nancy A. Kahn (hereinafter the defendant). The defendant's vehicle was turning left from Hewlett Avenue onto Sunrise Highway. It is undisputed that there were traffic control signals for vehicular and pedestrian traffic at the intersection. There was conflicting testimony as to whether the plaintiff was in the crosswalk at the moment of impact.
Although the plaintiff did not properly preserve for appellate review his challenges to the jury charge pertaining to the Vehicle and Traffic Law, we nevertheless reach the issue in the exercise of our interest of justice jurisdiction ( see Casiero v. Stamer, 308 A.D.2d 499), and find that the trial court committed reversible error by charging Vehicle and Traffic Law § 1151 instead of Vehicle and Traffic Law § 1111. Vehicle and Traffic Law § 1151 applies only where there is no controlling traffic signal at the intersection, which is not the case in this matter, whereas Vehicle and Traffic Law § 1111 applies to traffic controlled by traffic control signals ( see Vehicle and Traffic Law §§ 1151[a], 1150, 1111; Kochloffel v. Giordano, 99 A.D.2d 798) . These statutes impose different rights and duties on the drivers and pedestrians. Under Vehicle and Traffic Law § 1111, the pedestrian has the right of way when crossing with the pedestrian light in a crosswalk ( see Pire v. Otero, 123 A.D.2d 611; Applebaum v. Hersch, 26 A.D.2d 58). In contrast, under Vehicle and Traffic Law § 1151, although the pedestrian has the right of way, a duty is imposed on the pedestrian not to leave a curb or other place of safety and enter the path of the vehicle when the vehicle is so close that it is impractical for the driver to yield ( see Vehicle and Traffic Law § 1151[a], [b]). The erroneous charge was a fundamental error requiring a new trial because it affected the jury's consideration of the plaintiff's liability if the jury determined that the plaintiff was in the crosswalk when he was hit.
ALTMAN, J.P., KRAUSMAN, ADAMS and TOWNES, JJ., concur.