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PLAINTIFFS, PASSENGERS IN A CAR WITH THE RIGHT OF WAY, WERE ENTITLED TO SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE; COMPARATIVE NEGLIGENCE CAN BE CONSIDERED WHERE, AS HERE, PLAINTIFFS MOVED TO DISMISS DEFENDANT’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs were entitled to summary judgment in this intersection traffic accident case. Plaintiffs were passengers in a car which had the right of way. Defendant may or may not have stopped at a stop before proceeding into the intersection. The Second Department noted that whether the defendant stopped or not was irrelevant. Although comparative negligence is generally not an issue at the summary judgment stage, it can be considered where, as here, the plaintiffs moved to dismiss defendant’s comparative-negligence affirmative defense. The defense obviously does not apply to innocent passengers:

“To be entitled to partial summary judgment a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault” … . Even though a plaintiff is no longer required to establish his or her freedom from comparative negligence, the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant’s affirmative defense of comparative negligence … .

Here, in support of their motion, the plaintiffs submitted evidence sufficient to establish, prima facie, that the defendant driver was negligent in failing to see what was there to be seen and in entering the intersection without yielding the right-of-way, even if he did initially stop at the stop sign (see Vehicle and Traffic Law §§ 1142[a]; 1172[a] … ). With respect to the issue of comparative negligence, the plaintiffs demonstrated, prima facie, that they were innocent passengers who did not contribute to the happening of the accident. The right of the plaintiffs, as innocent passengers, to summary judgment is not “restricted by potential issues of comparative negligence” which may exist as between the defendant driver and the driver of the host vehicle … . Balladares v City of New York, 2019 NY Slip Op 08549, Second Dept 11-27-19

 

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