Rodriguez v City of New York, 2018 NY Slip Op 02287 (2018)
(1) “The motion for summary judgment must also “show that there is no defense to the cause of action” (id.). Further, subsection [c] of the same section sets forth the procedure for obtaining partial summary judgment and states that “[i]f it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount or extent of damages . . . the court may, when appropriate for the expeditious disposition of the controversy, order an immediate trial of such issues of fact raised by the motion”
(2) “Defendant’s attempts to rely on CPLR 3212’s plain language in support of its preferred approach are also unavailing. Specifically, defendant points to CPLR 3212(b), which provides; “[a] motion for summary judgment shall . . . show that there is no defense to the cause of action.” Defendant’s approach would have us consider comparative fault a defense. But, comparative negligence is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence, and as CPLR 1411 plainly states, is not a bar to plaintiff’s recovery, but rather a diminishment of the amount of damages.”
(3)”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. Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the case remitted to the Appellate Division for consideration of issues raised but not determined on the appeal to that court and the certified question answered in the negative.”
Now, when you move for summary judgment as a plaintiff, you need to: (1) Move for summary judgment in liability; and (2) To dismiss the affirmative defense of comparative negligence.
Otherwise, does summary judgment “on liability” really mean just that?
