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In Rodriguez v. City of New York, 31 N.Y.3d 312 (2018), the New York Court of Appeals clarified that a plaintiff does not need to show freedom from comparative fault to obtain partial summary judgment on liability against a defendant.  Therefore, if a plaintiff could prove even 1 % fault against a defendant as a matter of law, then plaintiff can prevail on a summary judgment motion notwithstanding his or her own contribution to the accident before the case ever gets to a jury—the question of whether a defendant was negligent would already be decided by trial.

MSD has been arguing for years that the standard should work both ways, i.e., a defendant should also be able to establish a plaintiff’s comparative fault as a matter of law, notwithstanding its own partial contribution to the accident or injury.  Thus, the question of whether a plaintiff was negligent would also already be decided by trial, and a jury’s role would be limited to apportionment and assigning percentages of fault between or among the parties.

Recently in Leathers v. Approved Oil Co. of Brooklyn, –N.Y.S.3d– (1st Dep’t 2023), the Court adopted defendant’s argument that the plaintiff should have been found comparatively negligent as a matter of law.  The case involved the death of a pedestrian who crossed the street against the signal while the defendant driver had a green light.  She was struck and killed in the road by the defendant’s tractor trailer.  There was conflicting evidence about the speed of the truck and whether the driver’s view was unobstructed, so, the First Department upheld the lower Court’s denial of the defendant’s motion for summary judgment.

However, the First Department also reversed the lower Court’s decision and held that the defendant’s motion for partial summary judgment declaring that the plaintiff was negligent should have been granted.  Since there was no dispute that the plaintiff had contributed to the accident by entering the roadway against the signal, then the jury only needed to consider how much fault should be attributed to her.  The question of whether she was negligent at all could be decided by the Court.

In reaching its decision, the Court specifically cited Rodriguez v. City of New York, supra.  It seems that MSD’s argument has been right all along, and that the Rodriguez decision is a two-way street.  In the right case where it can be proved as a matter of law that the plaintiff acted even 1% negligently, defendants should consider moving for partial summary judgment.


Robert A. Von Hagen, Esq. and Salvatore J. DeSantis, Esq. are Partners at Molod Spitz & DeSantis, P.C., a full-service, civil litigation law firm defending the interests of businesses, insurance companies, and contractors throughout New York and New Jersey.