IN THIS REAR-END TRAFFIC ACCIDENT CASE, WHERE PLAINTIFF WAS AN INNOCENT PASSENGER, DEFENDANTS’ FAILURE-TO-STATE-A-CAUSE-OF-ACTION AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN STRUCK BECAUSE THE MOTION TO STRIKE AMOUNTED TO TESTING THE SUFFICIENCY OF PLAINTIFF’S OWN CLAIM (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the “failure to state a cause of action” affirmative defense in this traffic accident case should not have been struck. Plaintiff was a passenger in a car rear-ended by defendants. The court noted that any comparative negligence among defendant-drivers does not preclude summary judgment on liability in favor of a non-negligent passenger:

The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers (see CPLR 3212[g] …). …

Supreme Court should have denied that branch of the plaintiff’s motion which was, in effect, pursuant to CPLR 3211(b) to dismiss the defendants’ first affirmative defense, alleging that the complaint fails to state a cause of action. “[N]o motion by the plaintiff lies under CPLR 3211(b) to strike the defense [of failure to state a cause of action], as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim” … . Ochoa v Townsend, 2022 NY Slip Op 05854, Second Dept 10-19-22

Practice Point: The plaintiff’s motion to strike defendants’ failure-to-state-a-cause-of-action affirmative defense should not have been granted because the motion amounts to plaintiff’s testing the sufficiency of his or her claim.

Practice Point: In a traffic-accident case, comparative negligence among defendant drivers does not preclude summary judgment on liability in favor of an innocent passenger.