concur in a separate memorandum by Saxe, J., as follows: Like my colleagues, I would reverse and remand for a new trial. I write separately, however, because I would reverse on different grounds.
Unlike the majority, I do not view the trial court’s use of the Noseworthy charge (see Noseworthy v City of New York, 298 NY 76 [1948]) as improper. On the contrary, I perceive a sound basis for the court’s finding that plaintiff had suffered memory loss (see Sala v Spallone, 38 AD2d 860 [1972]) that effectively prevented him from accurately recalling the events (see Jarrett v Madifari, 67 AD2d 396 [1979]). As to defendants’ contention that plaintiff should have been precluded from presenting for the first time at trial a new description of the accident, based on the assertions in his notice of claim, I join the rest of the bench in rejecting that challenge.
In my view, a new trial is necessary because the jury’s liability findings were against the weight of the evidence, both on the issue of the bus driver’s negligence and on the issue of the plaintiff’s own negligence. As to plaintiff’s comparative negligence, there was no dispute that plaintiff stepped onto Madison Avenue north of the crosswalk at 125th Street without first checking for oncoming vehicles, an act that qualifies as negligent. The driver’s various contradictory statements about how the accident happened do nothing to extinguish the undisputed fact that plaintiff stepped out into the roadway without first checking for oncoming vehicles. The jury’s decision to attribute no comparative negligence to plaintiff under such circumstances is inexplicable.
*429As to plaintiffs claim of the driver’s negligence, it rested too heavily on assertions unsupported by evidence or law to be permitted to stand. One claimed basis of liability was the assertion by plaintiffs expert that a bus driver ought to maintain a six-to-eight-foot “cushion” of space between the bus and the curb until it reaches the bus stop, at which point it should pull in adjacent to the curb. There is no basis in law for the imposition of such a duty on bus drivers; there is no such regulatory or industry standard. Indeed, there are a number of reasons why imposing such a duty on bus drivers would be inadvisable. Even if defendants failed to sufficiently challenge the theory proffered by plaintiffs expert as unfounded, we should rule on the issue in the interest of justice in order to avoid reliance on that reasoning for future liability claims against bus companies and drivers.
Another invalid basis proffered by plaintiff as support for the claim of negligence against defendants was the assertion that the bus driver ran a red light at 125th Street. There was no testimony either so stating or supporting such an inference. The eyewitness ambulance driver who was also heading northbound on Madison Avenue, but was stopped in the far right lane at a red light on 125th Street, merely stated that defendant’s bus had proceeded northbound towards the bus stop just north of where plaintiff was standing, that plaintiff stepped off the sidewalk onto Madison Avenue, and that the bus then struck plaintiff and knocked him back onto the curb. Nothing in what he or any other witness described indicated in any way that the bus had run the red light.
In any event, the assertion that the traffic signal at 125th Street was red when defendant bus driver drove through the intersection is meaningless, since plaintiff was seven feet north of the crosswalk, and stepped into the roadway without checking either the light or the road for oncoming vehicles. The color of the traffic light would have had virtually no bearing on the occurrence of the accident.
Finally, the driver’s many contradictory statements may justify a rejection of the driver’s credibility, but they cannot substitute for an affirmative showing of negligence.
Although defendants’ failure to move for a directed verdict pursuant to CPLR 4401 at the close of evidence precludes the dismissal on appeal (see Miller v Miller, 68 NY2d 871 [1986]) to which defendants claim entitlement under Splain v New York City Tr. Auth. (180 AD2d 454 [1992], lv denied 80 NY2d 759 [1992]), both plaintiffs excessive reliance on unsupported reasoning, and the jury’s failure to find any comparative negligence *430despite plaintiffs undisputed conduct, warrant a reversal and a remand for a new trial on liability.