Question of Fact Re: Plaintiff’s Comparative Fault Precludes Summary Judgment—Supreme Court Erroneously Granted Summary Judgment to Plaintiff “To the Extent … Defendant Is Liable”

In a personal injury case involving a collision between defendant’s car and plaintiff’s bicycle, the Second Department determined that summary judgment should not have been granted to the plaintiff because there existed a question of fact about plaintiff’s comparative negligence.  Supreme Court had granted summary judgment to the plaintiff “to the extent that the defendant is liable:”

In a personal injury action, to prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault …, since there can be more than one proximate cause of an accident … . Thus, the issue of the defendant’s liability, a component of which is the apportionment of fault …, cannot be determined as a matter of law until it is decided whether any culpable conduct on the plaintiff’s part contributed to the happening of the accident. For this reason, the Supreme Court order granting the plaintiff’s motion “to the extent that the defendant is liable,” while directing that the “plaintiff’s comparative negligence, if any, shall be decided by a jury,” was internally inconsistent.  Lanigan v Timmes, 2013 NY Slip Op 07711, 2nd Dept 11-20-13