PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS PEDESTRIAN-VEHICLE ACCIDENT CASE SHOULD HAVE BEEN GRANTED: ALTHOUGH A PLAINTIFF’S COMPARATIVE NEGLIGENCE IS NOT A BAR TO SUMMARY JUDGMENT, THE ISSUE CAN BE DECIDED AT THE SUMMARY JUDGMENT STAGE WHERE PLAINTIFF MOVES FOR SUMMARY JUDGMENT DISMISSING DEFENDANT’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE; PLAINTIFF’S MOTION WAS NOT PREMATURE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) plaintiff pedestrian was entitled to summary judgment in this pedestrian-vehicle accident case; and (2)  plaintiff’s motion for summary judgment was not premature, The court noted that, although plaintiff’s comparative negligence is not a bar to summary judgment, the issue can still be considered at the summary judgment stage when plaintiff moves for summary judgment dismissing defendant’s comparative-negligence affirmative defense:

The plaintiff submitted evidence demonstrating that she was approximately halfway across the street in a crosswalk with the pedestrian signal in her favor when the defendant, who was making a right turn, failed to yield the right-of-way and struck her, and that the defendant did not see the plaintiff in the crosswalk while making his turn … . The plaintiff also established, prima facie, that she was not at fault in the happening of the accident by demonstrating that, exercising due care, she had confirmed that she had the pedestrian signal in her favor and checked in both directions for approaching vehicles before entering the crosswalk … . In opposition, the defendant failed to raise a triable issue of fact as to his negligence or whether the plaintiff was comparatively at fault in the happening of the accident … .

… [P]laintiff’s motion was not premature, as the defendant failed to offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff … .The “mere hope or speculation” that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the plaintiff’s motion … . Xiuying Cui v Hussain, 2022 NY Slip Op 04759, Second Dept 7-27-22

Practice Point: Although summary judgment in a traffic accident case can be awarded without consideration of plaintiff’s comparative negligence, the issue can be considered at the summary judgment stage when the plaintiff moves for summary judgment dismissing defendant’s comparative-negligence affirmative defense.

Practice Point: Here the court found that plaintiff’s summary judgment motion was not premature because the defendant did not demonstrate further discovery would lead to relevant evidence.