PLAINTIFF-PEDESTRIAN’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; ALTHOUGH A PLAINTIFF NEED NOT DEMONSTRATE THE ABSENCE OF COMPARATIVE NEGLIGENCE IN SUPPORT OF SUMMARY JUDGMENT, THE COURT CAN CONSIDER COMPARATIVE NEGLIGENCE WHERE, AS HERE, THE PLAINTIFF MOVES TO DISMISS THE COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-pedestrian’s motion for summary judgment in this traffic accident case should have been granted. The court noted that evidence of a plaintiff’s comparative negligence, although no longer an impediment to summary judgment, can be considered by the court where the plaintiff moves to dismiss a comparative-negligence affirmative defense:

“A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries” … . “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 to be entitled to summary judgment on the issue of liability, 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, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting, inter alia, her own affidavit, which demonstrated that she was walking within a crosswalk with the pedestrian signal in her favor when Martinez, who was attempting to make a left turn, failed to yield the right-of-way and struck her … . The plaintiff’s affidavit was also sufficient to establish, prima facie, that she was not at fault in the happening of the accident, as it demonstrated that she exercised due to care by confirming that she had the pedestrian signal in her favor and by looking for oncoming traffic in all directions before entering the crosswalk and that the collision occurred so suddenly that she could not avoid it … . Hai Ying Xiao v Martinez, 2020 NY Slip Op 04295, Second Dept 7-29-20

Similar issues and result in Maliakel v Morio, 2020 NY Slip Op 04298, Second Dept 7-29-20