ORDERED that the judgment is reversed, on the law and as a matter of discretion, and the matter is remitted to the Supreme Court, Kings County, for a new trial, with costs to abide the event.
The plaintiff Marcia Sinagra (hereinafter the injured plaintiff) allegedly tripped and fell on a defect in a sidewalk in front of her next-door neighbor's house. She had traversed that sidewalk many times during the more-than 40 years that she lived there. The plaintiff Joseph Sinagra, the injured plaintiff's husband, testified that he and the injured plaintiff knew that many years before the accident a tree had been removed from that spot, and was replaced with a flagstone. The injured plaintiff testified that during the period of time that she lived near the sidewalk, she did not notice anything wrong with the condition of the sidewalk. Furthermore, neither plaintiff ever complained to the defendant City of New York regarding any dangerous condition in the sidewalk. Under these circumstances, the finding that the injured plaintiff was not comparatively negligent was against the weight of the evidence (see, CPLR 4404[a]; Nicastro v. Park, 113 A.D.2d 129). Accordingly, the matter is remitted to the Supreme Court, Kings County, for a new trial.
KRAUSMAN, J.P., McGINITY, SCHMIDT and ADAMS, JJ., concur.