Majority
p. 812[723 NE2d 70, 701 NYS2d 321] Elvis Gotoy, Respondent, v City of New York et al., Appellants, et al., Defendant. Argued October 21, 1999; decided November 23, 1999
p. 813
APPEARANCES OF COUNSEL
Michael D. Hess, Corporation Counsel of New York City (Jane L. Gordon and Edward F. X. Hart of counsel), for appellants.
Seligson, Rothman & Rothman, New York City (Martin S. Rothman and Alyne I. Diamond of counsel), and Gallin & Newman, P. C., Bronx (Philip Newman of counsel), for respondent.
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be reversed, with costs, and a new trial granted, for reasons stated by the dis
p. 814
senters, to the extent that they concluded that the trial court erred in refusing to instruct the jury as to any alleged comparative negligence on plaintiffs part. The police officer’s testimony regarding plaintiffs alleged failure to follow safety instructions created a question of fact as to plaintiffs comparative fault, which should have been submitted to the jury for its consideration.
Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur in memorandum.
Order reversed, etc.