You are here: / / BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE...

BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that summary judgment should not have been granted in favor of plaintiff in this traffic accident case. Both the defendant driver (Abbott) and the plaintiff passenger (Crystal) had consumed alcohol before the accident. The action was brought by Crystal’s mother on behalf of Crystal. Abbott had attempted a u-turn and was struck by the car behind her (driven by another defendant, Diederich):

Contrary to the plaintiff’s contention, she failed to establish, prima facie, that Crystal was free from culpable conduct with regard to the causation of her injuries. In support of her motion, the plaintiff relied upon, inter alia, the deposition transcripts of Abbott and Crystal. The testimony of Abbott and Crystal that they had consumed alcohol at a fraternity party prior to the subject accident raised questions of fact as to whether Crystal had knowledge that Abbott may have been intoxicated, which raised triable issues of fact regarding her comparative negligence … . Since triable issues of fact existed as to the comparative negligence of Crystal, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law on the issue of liability against the appellants (… . Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion. Vuksanaj v Abbott, 2018 NY Slip Op 02199, Second Dept 3-28-18

NEGLIGENCE (TRAFFIC ACCIDENTS, INTOXICATION, BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (INTOXICATION, BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/COMPARATIVE NEGLIGENCE (TRAFFIC ACCIDENTS, INTOXICATION, BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/INTOXICATION (TRAFFIC ACCIDENTS, COMPARATIVE NEGLIGENCE, PASSENGER,  BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

You might also like
THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION WAS BASED ON HEARSAY; THE SECOND MORTGAGE WAS NOT DEMONSTRATED TO MEET THE REQUIRMENTS OF RPAPL 1351 (SECOND DEPT).
OBJECTIVE MEASUREMENTS ARE NOT NECESSARY TO PROVE A SIDEWALK HEIGHT DIFFERENTIAL DEFECT IS TRIVIAL; HOWEVER, HERE THE DEPOSITION TESTIMONY, THE PHOTOGRAPHS AND THE OPINION OF A HUMAN FACTORS EXPERT (WHICH WAS NOT BASED ON OBJECTIVE MEASUREMENTS) DID NOT SUPPORT SUPREME COURT’S FINDING THE DEFECT IS TRIVIAL AS A MATTER OF LAW (SECOND DEPT).
Post-Offense “Bad Acts” Erroneously Admitted (Harmless Error)
NO EVIDENCE ICE ON WHICH PLAINTIFF SLIPPED AND FELL WAS FORMED BEFORE THE STORM, DEFENDANT ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE (SECOND DEPT).
THE FOLD-DOWN LADDER WHICH WAS PERMANENTLY ATTACHED TO THE CEILING WAS THE FUNCTIONAL EQUIVALENT OF A LADDER FOR GAINING ACCESS TO THE ATTIC; PLAINTIFF FELL WHEN THE LADDER DETACHED FROM THE CEILING; PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION (SECOND DEPT). ​
Condominium Owners Stated a Cause of Action Based Upon Third-Party-Beneficiary Status Re: a Contract Between the Village and an Engineer Hired to Inspect the Condominiums/The Contract Cause of Action Precluded the Professional Malpractice Cause of Action
DOCTRINE OF EQUITABLE ESTOPPEL APPLIED TO DENY NYC TRANSIT AUTHORITY’S MOTION TO DISMISS FOR FAILURE TO SERVE A NOTICE OF CLAIM; THE NOTICE HAD BEEN TIMELY SERVED ON THE METROPOLITAN TRANSIT AUTHORITY AND A 50-h HEARING HAD BEEN HELD.
ALTHOUGH THE PARTY TWICE FILED FOR BANKRUPTCY WITHOUT LISTING THE MEDICAL MALPRACTICE ACTION AS AN ASSET, THE BANKRUPTCY PROCEEDING WAS SUBSEQUENTLY REOPENED AND THE ACTION WAS ADDED AS AN ASSET; AT THAT POINT THE BANKRUPTCY TRUSTEE BECAME THE PLAINTIFF IN THE MEDICAL MALPRACTICE ACTION AND THE DOCTRINE OF JUDICIAL ESTOPPEL, BASED UPON THE PARTY’S INITIAL FAILURE TO LIST THE ACTION AS AN ASSET, DID NOT APPLY TO THE TRUSTEE (SECOND 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

SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL... PLAINTIFF’S JOB ENTAILED CLEANING UP GARBAGE, SLIPPING ON A PIECE OF CARDBOARD...