The New York State Appellate Division of the Supreme Court for the First Department in Rodriguez v City of New York (2016 NY Slip Op 05943, Decided on September 1, 2016), revisited “a vexing issue regarding comparative fault: whether a plaintiff seeking summary judgment on the issue of liability must establish, as a matter of law, that he or she is free from comparative fault. This issue has spawned conflicting decisions between the judicial departments, as well as inconsistent decisions by different panels within this Department. The precedents cited by the dissent have, in fact, acknowledged as much. After a review of the relevant precedents, we believe that the original approach adopted by this Department, as well as that followed in the Second Department, which requires a plaintiff to make a prima facie showing of freedom from comparative fault in order to obtain summary judgment on the issue of liability, is the correct one”
The dissent, in this 5 to 2 decision, states ‘”… a plaintiff does not have th[e] burden [of disproving the affirmative defense of comparative negligence]. Once a prima facie showing [of defendant’s negligence] is made, the burden shifts to the defendant to raise issues of fact, such as by submitting evidence in support of an affirmative defense”’ …. “The affirmative defense of comparative negligence is a partial defense that does not bar a plaintiff’s recovery, but merely reduces the amount of damages in proportion to the plaintiff’s culpable conduct, if any, that contributed to causing the injury (CPLR 1411; 1412). That is, the comparative negligence doctrine does not bear upon whether a defendant is liable; rather, it bears upon the extent of the defendant’s liability, where both the defendant and the plaintiff engaged in culpable conduct resulting in the injury. This is distinct from other complete defenses, such as the sole proximate cause defense, through which a defendant may be entirely absolved of liability.”
It appears that the New York Court of Appeals may very well need to be the final arbiter on this divisive and arguable legal question of procedural significance.