The First Department of the Appellate Division, which currently is comprised of 19 judges 1 but hears individual appeals by five-judge panels, 2 has been grappling with a recurring legal issue. The issue, which has been highly contentious, is whether in a negligence action a court may grant a plaintiff summary judgment on liability in a factual scenario establishing the defendant’s negligence but also raising issues of fact as to the plaintiff’s comparative fault.
For many years, the First Department consistently held that such a scenario precluded the granting of summary judgment on liability. 3 But in early 2011, in Gonzalez v. ARC Interior Constr. , 4 the court took a different position, albeit without explicitly overruling its prior precedent. Gonzalez held that because comparative negligence is not a complete bar to recovery in a negligence action, the plaintiff was entitled to summary judgment as to the defendant’s negligence even though there were issues of fact as to the plaintiff’s own culpable conduct. Subsequently, a different panel of the same court took a similar position in Tselebis v. Ryder Truck Rental, Inc. 5
