By now, most plaintiffs and defendants in the negligence arena are familiar with the Court of Appeals decision, Rodriguez v. City of New York, 31 N.Y.3d 312 (2018). It has reshaped the landscape of negligence litigation and is already the subject of much commentary.
The Rodriguez Court held, “[t]o be entitled to a 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” Rodriguez, supra at 324-325.
The court examined the defense of comparative negligence emphasizing that “…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.” Rodriguez, supra at 320.
This article examines some of the practical implications of this ruling: Can you dust off a summary judgment motion denied pre-Rodriguez and move to renew pursuant to CPLR 2221(e) as there is a change in the law? Can you still get a “good old-fashioned” summary judgment decision on liability where the question of comparative fault is eliminated? Will motions for a directed verdict at the end of a plaintiff’s case be treated as a summary judgment motion post-Rodriguez?
Renewal of a Denied Summary Judgment Motion
Now that Rodriguez has definitively held that a plaintiff need not establish the absence of one’s own comparative fault to be granted summary judgment (Rodriguez, supra at 324-325), can a plaintiff move to renew a previously denied motion for summary judgment pursuant to CPLR 2221(e)?
The answer appears to be “yes,” if the matter is still pending and the motion is made expeditiously. According to CPLR § 2221(e)(2): A motion for leave to renew: Shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; CPLR §2221(e)(2).
In the McKinney’s Practice Commentaries, Professor Patrick M. Connors explains that such a “change in the law” can be “…a new statute taking effect or a definitive ruling on a relevant point of law issued by an appellate court that is entitled to stare decisis.” McKinney’s Consol. Laws of N.Y., Practice Commentaries 2221:9. (citing Siegel, New York Practice, § 449 (4th Ed. 2005)).
Furthermore, the professor cites Dinallo v. DAL Elec., 60 A.D.3d 620, 621 (2d Dept. 2009) for the proposition that “[a] clarification of the decisional law is a sufficient change in the law to support renewal.”
Certainly, the core holding of Rodriguez represents, at a minimum, clarification of decisional law.
It is key, however, to note that such a motion must be made “prior to the entry of a final judgment or before the time to appeal has expired” Dinallo, supra at 621, or as Connors puts it, while the matter is “sub judice” McKinney’s Consol. Laws of N.Y., supra. Put bluntly: If a practitioner’s summary judgment motion was denied for the plaintiff’s failure to show freedom from comparative fault (pre-Rodriguez), the time to reargue is now.
The Old -Fashioned Summary Judgment Motion
At first blush, a reading of Rodriguez may reasonably evoke the following question, “Suppose I win summary judgment on liability, must there still be a liability portion of a trial?” If the defendant has asserted comparative negligence as an affirmative defense, then the answer is “yes.” That is, unless the plaintiff also obtains a decision granting summary judgment striking the affirmative defense of comparative negligence.
Prior to Rodriguez, where the plaintiff was required to show freedom from comparative fault, summary judgment on liability usually meant a “damages only” trial. Now that the plaintiff is not required to prove freedom from comparative fault, it appears that a liability portion of a trial must still be held to determine apportionment of liability. Rodriguez, supra at 324-325.
Can a summary judgment motion be made to avoid a liability trial altogether—to obtain an “old fashioned” summary judgment on liability? The Second Department appears to have addressed the mechanics of such a motion in light of Rodriguez in its recent decision Poon v. Nisanov, –A.D.3d—(2d Dept. 2018). In Poon, the plaintiff was involved in a three-car accident and was struck from the rear. Id. at *1. The vehicle that struck plaintiff in the rear was driven by Ramos. Id. Ramos claims that it struck the plaintiff while trying to avoid the Nisanov vehicle, which was driving on the shoulder of an entrance ramp. Id. Nisanov claims to have been uninvolved and merely witnessed the accident while behind the Ramos vehicle. Id.
Of particular interest here, the plaintiff in Poon moved for summary judgment on liability and also moved to dismiss the Nisanov defendant’s affirmative defense of comparative negligence on the part of the plaintiff. Id. at *2.
The court in Poon held that, notwithstanding Rodriguez, “…the issue of plaintiff’s comparative negligence may be decided in the context of a summary judgment where, as here, the plaintiff moved for summary judgment dismissing a defendant’s affirmative defense of comparative negligence” Poon, supra at *3 (citing Jiang-Hong Chen v. Heart Tr., Inc., 143 A.D.3d 945 (2d Dept. 2016)). Although the court found an issue of fact as far the liability between the two defendants, it nevertheless granted plaintiff’s motion to dismiss the affirmative defense of the plaintiff’s comparative negligence. Poon, supra at *4.
While establishing plaintiff’s freedom from negligence is no longer necessary to obtain summary judgment, if a plaintiff has the ability to make such a showing, a plaintiff should now take the additional step of moving for summary judgment and to dismiss the affirmative defense of comparative negligence.
This would appear most helpful in run-of-the-mill rear end accidents but would also be prudent in instances where caselaw, not the statute by its own terms, eliminates comparative negligence as a defense, such as Labor Law § 240(1) or General Municipal Law § 205(a) and (e) matters.
A Rodriguez Motion for Directed Verdict?
If a summary judgment motion was not made prior to trial, can a plaintiff’s attorney move for a directed verdict pursuant to Rodriguez if the defendant’s negligence is established at trial?
It is expected that there will be a drastic increase in plaintiff directed verdict applications in the wake of Rodriguez. As Judge Feinman noted, “[w]here plaintiff has already established defendant’s liability as a matter of law, granting plaintiff partial judgment eliminates the first two questions [negligence and substantial factor] submitted to the jury, thereby serving the beneficial purpose of focusing the jury on questions and issues that are in dispute.” Rodriguez, supra at 324.
Such a motion, eliminating the question of defendant’s negligence altogether, is likely a strategic mandate. In the event that the defendant has violated an applicable vehicle and traffic law statute or that there is an applicable violation of the industrial code in a Labor Law § 241(6) matter, this motion should be made as surely as one would make a post-Rodriguez summary judgment motion, relieving the court of a PJI 2:26 Statutory Standard of Care instruction in auto cases and in Labor Law § 241(6) cases, a PJI 2:216A instruction.
A directed verdict is the equivalent to a summary judgment: “[w]hether the determination is based on pretrial evidentiary submissions or on the evidence presented at trial, the legal standard is exactly the same.” Stephenson v. Hotel Employees and Restauraunt Employees Union Local 100 of the AFL-CIO, 14 A.D.3d 325, n. 4 (1st Dept. 2005), aff’d, 6 N.Y.3d 265 (2006). As the First Department emphasized, “CPLR 3212(b) implicitly draws an analogy between the motion for summary judgment and the motion for a directed verdict made at trial.” Mendoza v. Highpoint Associates, IX, LLC, 83 A.D.3d 1, 8 (1st Dept. 2011).
In light of the court’s emphasis on comparative fault in Rodriguez, a practitioner should anticipate the remote possibility of an improper jury verdict assessing plaintiff’s culpable conduct at 100%. A practitioner should therefore be prepared to argue (with memorandum in hand) to set aside such a verdict citing Rodriguez for the proposition that comparative negligence, “…as CPLR 1411 plainly states, is not a bar to plaintiff’s recovery, but rather a diminishment of the amount of damages.” Rodriguez, supra at 320.
Apart from the primary assumption of risk that the Court of Appeals has identified as having survived the enactment of Section 1411 (see Turcotte v. Fell, 68 N.Y.2d 432, 438-439 (1986); see also Philius v. City of New York, 161 A.D.3d 787, *2-*8 (2d. Dept. 2018)(concurring opinion of Justice Connolly)), there appear to be no remaining complete bars to a plaintiff’s recovery and such a decision of the jury will likely be set aside.
As the dust settles in the wake of the Rodriguez decision, the outlines of the paths of the practitioners are beginning to take shape, but decisions on the implications (both predictable and unpredictable) await our discerning eyes.
Robert L. Fellows is the managing partner and Daniel Justus Solinsky is a trial lawyer at Fellows Hymowitz.