PASSARIELLO v. LALLY

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.