You are here: / / ALTHOUGH PLAINTIFF’S COMPARATIVE NEGLIGENCE IS NOT A BAR TO SUMMARY...
, ,

ALTHOUGH PLAINTIFF’S COMPARATIVE NEGLIGENCE IS NOT A BAR TO SUMMARY JUDGMENT ON LIABILITY, IT IS A VALID AFFIRMATIVE DEFENSE WHICH IS RELEVANT TO DAMAGES; THE COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant’s comparative-negligence affirmative defense should not have been dismissed. Although plaintiff’s comparative negligence is no longer a bar to summary judgment on liability, it is relevant to damages:

Plaintiff was injured when he was struck by the wheelchair ramp of a bus. That bus was owned by defendants and operated by an employee of defendants. The bus operator testified that he deployed the ramp and saw it hit plaintiff. He testified that he gave warnings in a loud voice before lowering the ramp, which made a “very loud” beeping noise that was “excruciating.”

Plaintiff met his prima facie burden by submitting evidence, including his deposition testimony, that the operator was negligent in lowering the ramp onto the sidewalk when it was not reasonably safe to do so … . In opposition, defendants did not offer any nonnegligent explanation for the accident … . This accident was not within plaintiff’s exclusive knowledge, because it occurred in the presence of a potential witness, namely the operator … . Defendants’ remaining arguments effectively assert comparative negligence by plaintiff, which he was not required to disprove to be entitled to partial summary judgment … .

Supreme Court should not, however, have dismissed the affirmative defense of comparative negligence. At summary judgment, issues of credibility may not be resolved, and all reasonable inferences must be drawn in favor of the nonmoving party … . Prendergast v New York City Tr. Auth., 2023 NY Slip Op 05378, First Dept 10-24-23

Practice Point: Even where a plaintiff is entitled to summary judgment on liability, a defendant’s comparative-negligence affirmative defense remains relevant to damages.

 

You might also like
Under the Facts, the Prosecutor Was Not Obligated to Present Exculpatory Evidence to the Grand Jury—Defendant Did Not Exercise His Right to Testify Before the Grand Jury
PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, MAKESHIFT LADDER SLID OUT FROM UNDER HIM (FIRST DEPT).
Question of Fact Raised by Competing Expert Affidavits Re: Proximate Cause
ALTHOUGH THE RULES OF THE CITY OF NEW YORK REQUIRED THAT TIME WARNER MAINTAIN ONLY THE AREA 12 INCHES AROUND A METAL BOX COVER IN THE SIDEWALK, THERE WERE QUESTIONS OF FACT WHETHER TIME WARNER OR A PREDECESSOR CREATED THE DEFECT OR HAD CONSTRUCTIVE NOTICE OF THE DEFECT OUTSIDE THE 12 INCH AREA, SUPREME COURT REVERSED IN THIS SLIP AND FALL CASE (FIRST DEPT).
THE DEFENDANT HOSPITAL, CREMATORY AND FUNERAL CHAPEL RELIED IN GOOD FAITH ON THE INFORMATION AND DOCUMENTS PROVIDED BY DECEDENT’S DOMESTIC PARTNER; PLAINTIFFS, DECEDENT’S ADULT CHILDREN, RAISED NO OBJECTION TO THE ARRANGEMENTS MADE BY THE DOMESTIC PARTNER UNTIL A MONTH AFTER DEATH; THE “INFRINGEMENT OF RIGHTS OF SEPULCHER” ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).
A JUDGE CANNOT ORDER DISCOVERY IN A FOREIGN JURISDICTION WHICH IS A SIGNATORY TO THE HAGUE CONVENTION WITHOUT COMPLYING WITH THE REQUIREMENTS OF THE CONVENTION (FIRST DEPT).
NEGLIGENCE CAUSES OF ACTION AGAINST THE DISTRIBUTOR AND RETAIL SELLER OF A SULFURIC ACID DRAIN OPENER, AND THE NEGLIGENT DISCHARGE OF A CONTRACTUAL OBLIGATION CAUSE OF ACTION AGAINST THE DISTRIBUTOR, SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
THERE WAS NO EVIDENCE MOTHER’S MENTAL HEALTH ISSUES IMPAIRED THE CHILDREN; ONE INCIDENT IN WHICH MOTHER SLAPPED HER SON WHEN HE WAS RUDE AND DISRESPECTFUL DID NOT SUPPORT A FINDING OF EXCESSIVE CORPORAL PUNISHMENT (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PETITIONER FIREFIGHTER WAS INJURED WHEN HE BECAME DEHYDRATED DURING TRAINING;... PLAINTIFF PASSENGER SUED THE DRIVER WHO STRUCK A CAR FROM BEHIND; PLAINTIFF...