Court of Appeals: Showing of absence of comparative negligence not required in moving for summary judgment.

By Edward J O’Gorman and Marc H. Pillinger. On April 3, 2018, New York’s highest state court, in Rodriguez  v. City of New York, 2018 NY Slip Op. 02287, held, in a 4 to 3 decision, plaintiff need not “demonstrate the absence of comparative negligence to be entitled to partial summary judgment as to a defendant’s liability.” Plaintiff was injured outfitting sanitation trucks with tire chains and plows at a city-owned garage in preparation for snow and ice removal.  As a sanitation truck was backing into a garage bay, a guide’s positioning on the driver’s side of the truck violated DOS safety practices.  As the truck backed into the garage bay, plaintiff stood in front of a parked car and a “rack of tires” outside of the bay.  The truck skidded, crashing into the parked car, causing the car to “pin” plaintiff against the rack of tires. Holding plaintiff is not required to make a showing of absence of comparative negligence when moving for summary judgment on liability, the majority referred to CPLR 1411. In any action to recover damages for personal injury, injury to property or wrongful death, the culpable conduct attributable to the claimant or the decedent,  including contributory negligence or assumption of risk shall not bar recovery.  But the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages. The majority cited the example of a statutory violation preventing plaintiff from prevailing on summary judgment, where plaintiff failed to establish his/her absence of comparative negligence.  This would...