Castillo v. Slupecki

DECISION & ORDER Plaintiff’s motion to renew or reargue a portion of her prior summary judgment motion is granted in part.Less than one year ago, the Court of Appeals decided Rodriguez v. City of New York, 31 NY3d 312 (April 3, 2018), a significant decision relating to summary judgment practice, particularly in the tort realm. The Rodriguez decision clarified the burden imposed on a plaintiff seeking summary judgment on the issue of a defendant’s liability in an action subject to CPLR article 14-A, New York’s comparative fault law. The clarification of that burden raises new procedural considerations that must be examined by the bench and bar. Plaintiff’s motion to renew or reargue a portion of her prior motion seeking summary judgment on the issue of “liability” highlights some of those new procedural considerations.On February 10, 2012, plaintiff was struck by a vehicle operated by defendant as plaintiff was crossing Eleventh Avenue at its intersection with West 51st Street in Manhattan. Plaintiff commenced this action to recover damages for personal injuries she allegedly sustained as a result of the pedestrian-knockdown accident. Defendant interposed an answer containing affirmative defenses alleging, in effect, plaintiff’s comparative fault.¹In January 2018, plaintiff moved for summary judgment on the issue of “liability.” At the time plaintiff made that motion, a plaintiff seeking such relief in the First Department was required to establish that the defendant was negligent, that the negligence was a proximate cause of the plaintiff’s injuries,² and that the plaintiff was free from comparative fault (see, e.g., Parris v. Gonzalez-Martinez, 129 AD3d 519 [1st Dept 2015]; Geralds v. Damiano, 128 AD3d 550 [1st Dept 2015]; Maniscalco v. New York City Transit Auth., 95 AD3d 510 [1st Dept 2012]; but see, e.g., Pace v. Robinson, 88 AD3d 530 [1st Dept 2011]; Tselebis v. Ryder Truck Rental, Inc., 72 AD3d 198 [1st Dept 2010]). Plaintiff recognized that her burden on her summary judgment motion included the obligation to establish that she was free from comparative fault (see Mines’ Jan. 10, 2018 affirmation in support, at