Albarello v. City of New York

Judgment, Supreme Court, Bronx County, entered on May 8, 1972, unanimously reversed, on the law and the facts, and vacated, and a new trial granted, with $60 costs and disbursements to abide the event. The jury having found for the defendant, the only question is as to certain aspects of the charge. While it is clear that in a wrongful death action, the burden of proof as to contributory negligence of the decedent is on the defendant (EPTL 11-3.2, subd. [b]; see Cruz v. Long Is. B. B. Co., 28 A D 2d 282 , 285), the court’s charge lacked clarity on this point. Concur — Markewich, J. P., Kupferman, Lane, Steuer and Tilzer, JJ.