In Rodriguez v. City of New York, 2016 NY Slip Op 05943 (App. Div. 1st Dept. Sept. 1, 2016), the court held that a plaintiff moving for summary judgment on liability must demonstrate, as a matter of law, that s/he is free from comparative fault.
From the decision:
In this case, we are revisiting a vexing issue regarding comparative fault: whether a plaintiff seeking summary judgment on the issue of liability must establish, as a matter of law, that he or she is free from comparative fault. This issue has spawned conflicting decisions between the judicial departments, as well as inconsistent decisions by different panels within this Department. The precedents cited by the dissent have, in fact, acknowledged as much. After a review of the relevant precedents, we believe that the original approach adopted by this Department, as well as that followed in the Second Department, which requires a plaintiff to make a prima facie showing of freedom from comparative fault in order to obtain summary judgment on the issue of liability, is the correct one.
Under our comparative negligence system, a plaintiff’s contributory fault may proportionally diminish his or her recovery, but will not preclude recovery unless the plaintiff was solely at fault (CPLR 1411). Such “culpable conduct” on the part of a plaintiff “shall be an affirmative defense to be pleaded and proved by the party asserting the defense” (CPLR 1412). The issue that arises in the context of a summary judgment motion brought by a plaintiff on the issue of liability is whether, as the dissent posits, the motion should be granted and the issue of contributory negligence considered during the damages portion of the case or where the defendant raises an issue of fact with respect to the plaintiff’s negligence and the plaintiff fails to show the absence of negligence on his or her part, the motion must be denied and that issue considered during the liability phase of the trial. As discussed herein, the latter is the fairer, and therefore the proper way to proceed.
The court thus concluded that “where, as here, an issue of fact as to the plaintiff’s comparative negligence has been raised, and the plaintiff has not negated the presence of comparative liability on his or her part, the plaintiff’s motion for summary judgment must be denied.”