On April 3, 2018, the Court of Appeals addressed whether a plaintiff must establish the absence of their own comparative negligence to obtain partial summary judgment. Both the trial court and appellate court below had denied plaintiff’s motion for partial summary judgment on the basis that there were triable issues of fact regarding plaintiff’s comparative negligence. The Court of Appeals in considering the issue focused on the plain language of the statute and legislative intent concerning CPLR §§ 3212, 1411 and 1412. In doing so, the Court found that placing the burden on the plaintiff to show an absence of comparative fault would be inconsistent with the plain language of CPLR 1412. The Court also noted that where a plaintiff is awarded partial summary judgment on defendant’s negligence, it would eliminate two typical questions for the jury: (1) was the defendant negligent; and (2) was defendant’s negligence a substantial factor in causing the injury or accident? The result would focus the jury on questions and issues that remain in dispute. According to the Court, where a defendant’s liability has been established as a matter of law before trial, the jury must still determine whether the plaintiff was negligent and whether the negligence was a substantial factor in causing plaintiff’s injuries. If so, the comparative fault of each party is then apportioned by the jury. Therefore, the jury is still tasked with considering the plaintiff’s and defendant’s comparative culpability together. As a practical matter, a trial court will instruct the jury in a modified version of Pattern Jury Instruction 1:2B that the issue of defendant’s negligence, and in some cases, the related proximate cause question, have been previously determined as a matter of law. In sum, the Court of Appeals ruled that to be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant’s liability and the absence of his or her own comparative fault.
The dissent points out that the majority’s approach enables a plaintiff to obtain summary judgment even where a defendant has demonstrated that plaintiff’s comparative fault may be significant. Moreover, the dissent asserted that placing the burden on plaintiff when moving for partial summary judgment is not unique, as it merely would place the burden on the moving party to demonstrate a lack of triable issues of fact.
