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You are here: Home1 / Negligence2 / PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE...
Negligence

PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS CAR ACCIDENT CASE REQUIRED DENIAL OF SUMMARY JUDGMENT WITHOUT REGARD TO OPPOSING PAPERS.

The Second Department determined plaintiff’s motion for summary judgment in this car accident case was properly denied because plaintiff did not demonstrate the absence of comparative fault:

There can be more than one proximate cause of an accident … . Accordingly, a plaintiff moving for summary judgment on the issue of liability in a personal injury action has the burden of establishing, prima facie, not only the defendant’s negligence, but also the absence of his or her comparative fault … . Here, although the plaintiff demonstrated that [defendant] was negligent … , the plaintiff failed to demonstrate the absence of his own comparative fault … . The plaintiff’s failure to satisfy his burden required the denial of his motion without regard to the sufficiency of the evidence that the defendants submitted in opposition … . Padilla v Biel, 2016 NY Slip Op 07009, 2nd Dept 10-25-16

NEGLIGENCE (PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS CAR ACCIDENT CASE REQUIRED DENIAL OF SUMMARY JUDGMENT WITHOUT REGARD TO OPPOSING PAPERS)/SUMMARY JUDGMENT (NEGLIGENCE, PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS CAR ACCIDENT CASE REQUIRED DENIAL OF SUMMARY JUDGMENT WITHOUT REGARD TO OPPOSING PAPERS)/COMPARATIVE NEGLIGENCE PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS CAR ACCIDENT CASE REQUIRED DENIAL OF SUMMARY JUDGMENT WITHOUT REGARD TO OPPOSING PAPERS)/VEHICLE ACCIDENTS (PLAINTIFF’S FAILURE TO AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF COMPARATIVE FAULT IN THIS CAR ACCIDENT CASE REQUIRED DENIAL OF SUMMARY JUDGMENT WITHOUT REGARD TO OPPOSING PAPERS)

October 25, 2016
Tags: Second Department
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THE CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE OPEN MANHOLE PLAINTIFF DROVE OVER; PLAINTIFF UNSUCCESSFULLY TRIED TO RAISE, FOR THE FIRST TIME, AN EXCEPTION TO THE WRITTEN NOTICE REQUIREMENT IN RESPONSE TO THE CITY’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).
THE MAJORITY DETERMINED DEFENDANT’S ARGUMENT HIS GUILTY PLEA WAS NOT VOLUNTARILY ENTERED WAS NOT PRESERVED; THE DISSENT ARGUED DEFENDANT WAS NOT ADEQUATELY INFORMED OF HIS BOYKIN RIGHTS AND THE CONVICTION SHOULD BE REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).
THE SO-ORDERED STIPULATION BETWEEN THE PARTIES RENDERED THE RELATED CAUSE OF ACTION IN THE COMPLAINT MOOT; THE OTHER CAUSE OF ACTION RELIED ON SPECULATION ABOUT FUTURE EVENTS AND THEREFORE WAS NOT RIPE FOR JUDICIAL REVIEW (SECOND DEPT).
PLAINTIFF BANK’S REPRESENTATIVE RELIED ON UNIDENTIFIED DOCUMENTS WHICH WERE NOT ATTACHED TO HER AFFIDAVIT TO DEMONSTRATE DEFENDANT’S DEFAULT IN THIS FORECLOSURE ACTION; BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).
Judicial Approval of a Settlement with Third Parties Was Properly Granted After the Expiration of the Statutory Period (Nunc Pro Tunc)—Delay In Seeking Approval Was Not Due to Injured Worker’s Fault or Neglect/Workers’ Compensation Carrier’s Consent to a Settlement Is Required Even Where the Settlement Is Greater than the Amount of the Benefits Received/Absent the Consent of the Carrier, Judicial Approval Is Required
SUPREME COURT PROPERLY RELIED ON THE RESULTS OF A FRYE HEARING IN A PRIOR TRIAL TO ALLOW THE TESTIMONY OF A DEFENSE EXPERT (SECOND DEPT).
THE 2019 MOTION TO RESTORE THE ACTION TO ACTIVE STATUS AFTER THE NOTE OF ISSUE WAS VACATED IN 2012 SHOULD HAVE BEEN GRANTED; LACHES DOES NOT APPLY WHERE THERE HAS BEEN NO SERVICE OF A 90-DAY DEMAND PURSUANT TO CPLR 3216 (SECOND DEPT).
AN AGREEMENT SIGNED BY THE PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION REQUIRING THE DEPOSITION OF EXPERT WITNESSES 120 DAYS BEFORE TRIAL IS VOID AND UNENFORCEABLE AS AGAINST THE POLICY UNDERLYING THE EXPERT DISCLOSURE PROVISIONS OF THE CPLR (SECOND DEPT).

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