Pedestrian Knockdown Plaintiff Was Free From Comparative Fault as a Matter of Law, Court Holds

In Castillo v. Slupecki, 2019 NY Slip Op 29033 (Sup. Ct. Bronx Cty. Feb. 8, 2019), the court held (upon reargument) that plaintiff – who seeks damages for injuries sustained as a result of a “pedestrian-knockdown” car accident – was free from comparative fault as a matter of law.

The court had previously granted plaintiff summary judgment on defendant’s “liability” under the framework established/revised by the Court of Appeals’  recent decision in Rodriguez v City of New York, 31 NY3d 312 (April 3, 2018). It noted (for reasons explained in the decision, but which I will not address here) that the court did not previously consider the issue of “whether, as a matter of law, plaintiff was free from comparative fault.”

In this decision, the court answers that question in the affirmative:

Upon reargument, that aspect of plaintiff’s prior motion seeking summary judgment on the issue of comparative fault is granted. Plaintiff’s deposition testimony and affidavit demonstrated that plaintiff waited for a “Walk” signal in her favor before attempting to cross Eleventh Avenue; that, after she had the “Walk” signal in her favor, she checked both directions of traffic before attempting to cross the street and started to cross after appreciating that it was safe to do so; that she was crossing the street in a marked crosswalk; that she kept a lookout as she crossed the street; and that she was struck in the middle of the street by defendant’s vehicle as it was making a left-hand turn from West 51st Street onto Eleventh Avenue. Those submissions established, prima facie, that plaintiff was free from comparative fault[.] … In opposition, defendant, whose only evidentiary submission was an inadmissible statement …, failed to raise a triable issue of fact as to plaintiff’s alleged comparative fault.

Plaintiff was, therefore, entitled to summary judgment on the issue of defendant’s “liability” (which it previously granted), as well as summary judgment on the issue of comparative fault and the dismissal of defendant’s affirmative defenses alleging plaintiff’s comparative fault (which it grants here).

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