Comparative Negligence not foundMay 14, 2020
Silverio v Ford Motor Co., 2020 NY Slip Op 02892 (1st Dept. 2020)
“The Court also stated that plaintiff did not need to prove that he was not comparatively negligent in order to obtain partial summary judgment on the issue of defendants’ liability, based on Rodriguez v City of New York (31 NY3d 312 ). Plaintiff’s interpretation of this Court’s decision in Silverio (168 AD3d 608) would require finding that he was not comparatively negligent, despite the fact that he never moved for summary judgment on defendant’s affirmative defense of comparative negligence or introduced evidence to support his contention that he did not contribute to the accident (see Poon v Nisanov, 162 AD3d 804 [2d Dept 2018]; see also Wray v Galella, 172 AD3d 1446, 1448 [2d Dept 2019]).
The issue of comparative fault should have been left to a jury in determining damage”
Yes, please remember that when moving for summary judgment, an application to dismiss the affirmative defense of comparative negligence should be made to completely resolve the issue.