You are here: / / IN ORDER TO BE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT LIABLE IN...

IN ORDER TO BE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT LIABLE IN AN ACCIDENT CASE, PLAINTIFF MUST DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE.

The First Department, over an extensive two-justice dissent, determined that, where a question of fact has been raised in an accident case about whether plaintiff was comparatively negligent, summary judgment finding defendant liable cannot be granted. Here, the plaintiff was alleged to have been injured while walking behind a sanitation truck which was backing up:

In this case, we are revisiting a vexing issue regarding comparative fault: whether a plaintiff seeking summary judgment on the issue of liability must establish, as a matter of law, that he or she is free from comparative fault. This issue has spawned conflicting decisions between the judicial departments, as well as inconsistent decisions by different panels within this Department. The precedents cited by the dissent have, in fact, acknowledged as much. After a review of the relevant precedents, we believe that the original approach adopted by this Department, as well as that followed in the [2nd] Department, which requires a plaintiff to make a prima facie showing of freedom from comparative fault in order to obtain summary judgment on the issue of liability, is the correct one. …

The issue that arises in the context of a summary judgment motion brought by a plaintiff on the issue of liability is whether, as the dissent posits, the motion should be granted and the issue of contributory negligence considered during the damages portion of the case or where the defendant raises an issue of fact with respect to the plaintiff’s negligence and the plaintiff fails to show the absence of negligence on his or her part, the motion must be denied and that issue considered during the liability phase of the trial. As discussed herein, the latter is the fairer, and therefore the proper way to proceed. Rodriguez v City of New York, 2016 NY Slip Op 05943, 1st Dept 9-1-16

 

NEGLIGENCE (IN ORDER TO BE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT LIABLE IN AN ACCIDENT CASE, PLAINTIFF MUST DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE)/COMPARATIVE NEGLIGENCE (IN ORDER TO BE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT LIABLE IN AN ACCIDENT CASE, PLAINTIFF MUST DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE)/EVIDENCE (NEGLIGENCE, (IN ORDER TO BE ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT LIABLE IN AN ACCIDENT CASE, PLAINTIFF MUST DEMONSTRATE FREEDOM FROM COMPARATIVE NEGLIGENCE)

You might also like
THE LAWSUIT ALLEGED ANTITRUST VIOLATIONS, WHICH ARE EXCLUDED FROM COVERAGE, THE PASSING REFERENCES TO PRODUCT DISPARAGEMENT, WHICH WOULD BE COVERED, DID NOT TRIGGER THE DUTY TO DEFEND (FIRST DEPT).
A 2021 BUYBACK AGEEMENT BETWEEN A NATURAL GAS PRODUCER AND A NATURAL GAS SELLER WHICH WAS ENTERED IN ANTICIPATION OF A WINTER STORM WHICH WOULD REDUCE THE PRODUCER’S ABILITY TO DELIVER THE USUAL AMOUNT OF GAS IS VALID AND ENFORCEABLE AND CANNOT BE CANCELLED BASED UPON THE “FORCE MAJEURE” CLAUSE IN THE ORIGINAL 2019 CONTRACT BETWEEN THE PARTIES (FIRST DEPT).
ARCHITECT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, THE FACT THAT ANOTHER PARTY PLACED THE ANGLE IRON WHICH INJURED PLAINTIFF IN AN EFFORT TO FIX AN ALLEGED DEFECT IN THE DESIGN OF THE SUBJECT BOILER SYSTEM DID NOT CONSTITUTE A SUPERSEDING CAUSE OF PLAINTIFF’S INJURY AS A MATTER OF LAW (FIRST DEPT).
HOLOCAUST EXPROPRIATED ART RECOVERY ACT CONTROLS THE APPLICABLE STATUTE OF LIMITATIONS IN AN ACTION SEEKING RECOVERY OF A PAINTING CONFISCATED DURING THE GERMAN OCCUPATION OF FRANCE (FIRST DEPT).
THE ABSENCE OF A RETAINER AGREEMENT DOES NOT PRECLUDE RECOVERY OF ATTORNEY’S FEES UNDER THE ACCOUNT STATED THEORY (FIRST DEPT).
AN ANSWER TO AN AMBIGUOUS QUESTION ON AN APPLICATION FOR INSURANCE COVERAGE IS NOT A MATERIAL MISREPRESENTATION; THEREFORE THE ANSWER DID NOT VOID THE POLICY WHICH REMAINS IN FULL FORCE AND EFFECT (FIRST DEPT). ​
PLAINTIFF BANK NEVER REVOKED THE ACCELERATION OF THE MORTGAGE DEBT; FIFTH FORECLOSURE ACTION TIME-BARRED (FIRST DEPT).
THE SOCIAL SERVICES LAW PROHIBITS THE RELEASE OF THE NAMES AND ADDRESSES OF PERSONS RECEIVING PUBLIC ASSISTANCE; THEREFORE THE FOIL REQUEST FOR THE ADDRESSES OF HOMELESS SHELTERS SHOULD HAVE BEEN DENIED (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

INSURER NOT LIABLE FOR POLLUTION DAMAGE DURING PERIODS WHEN POLLUTION INSURANCE... QUESTION OF FACT WHETHER PROPERTY MANAGER LAUNCHED AN INSTRUMENT OF HARM WHEN...