
    James Swift, Appellant, v Jack Rusin, Defendant, and Twentieth and Fifth Garage, Inc., Respondent.
   In a negligence action to recover damages for personal injuries, plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County, entered May 20, 1975, as is in favor of defendant Twentieth and Fifth Garage, Inc., and against him, after a jury trial. Judgment reversed insofar as appealed from, on the law, and, as between plaintiff and defendant Twentieth and Fifth Garage, Inc., action severed and new trial granted, with costs to abide the event. No questions of fact have been considered. The testimony of plaintiff, that he received permission to enter upon the premises, was sufficient to make out a prima facie case, notwithstanding the preponderating evidence to the contrary. The trial court’s charge to the jury that plaintiff was a trespasser as a matter of law was therefore improper and that question is now irrelevant in view of the determination by the Court of Appeals in Basso v Miller (40 NY2d 233). Hopkins, Acting P. J., Cohalan, Damiani, Shapiro and Titone, JJ., concur.  