Bukoff v. New York City Transit Authority ( 1995 )

Judgment, Supreme Court, New York County (Thomas Adams, J.), entered on August 6, 1993, upon a jury verdict in defendants’ favor, uunanimously reversed, on the law, without costs, the judgment vacated, and the matter remanded for a new trial.

Lillian Bukoff, plaintiff’s decedent, aged 68 at the time of the accident, fell and broke her hip while boarding or just after boarding a bus. Plaintiff alleges that defendants were negligent and failed to exercise reasonable care, and that Mrs. Bukoff fell when the driver pulled away from the stop.

Plaintiff took exception to the court’s stated intention to charge contributory negligence. On summation, defendant did not argue that Mrs. Bukoff had been negligent. Nevertheless, in addition to charging comparative negligence, the court charged contributory negligence and instructed the jury that if Mrs. Bukoff failed to exercise reasonable care for her own safety and such failure could be regarded as "a cause of her injuries, your verdict will be for the defendant.”

The jury found that defendants were not negligent. Nevertheless, the contributory negligence charge was erroneous, confusing, and without evidentiary basis. And plaintiff’s exception to the charge, that the comparative negligence charge in itself was enough and that there was no showing that the plaintiff was negligent at all, was sufficient to preserve the question for review. In accordance with CPLR 4110-b, plaintiff stated the matter to which he objected and the grounds of his objection. McCummings v New York City Tr. Auth. (177 AD2d 24, 31-32, affd 81 NY2d 923, rearg denied, 82 NY2d 706, cert denied — US —, 114 S Ct 548), where only a bare exception was stated, is not in point.

In view of the foregoing, it is unnecessary to consider plaintiff’s argument that the trial court charged the incorrect standard with respect to defendant’s duty to boarding passengers. Concur—Wallach, J. P., Ross, Rubin, Nardelli and Tom, JJ.