Supreme Court, Bronx County, February 8, 2019

Law Office of Dubow, Smith & Marothy, New York City (Steven J. Mines of counsel), for plaintiff.

Law Office of Nancy L. Isserlis, Long Island City (Glenn R. Schwartz of counsel), for defendant.

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 [Apr. 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{**63 Misc 3d at 327} 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 11th 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.^[FN1]

In January 2018, plaintiff moved for summary judgment on the issue of "liability." At the [*2]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,^[FN2] 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 Tr. 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{**63 Misc 3d at 328} motion included the obligation to establish that she was free from comparative fault (see Mines' affirmation in support, Jan. 10, 2018, ¶¶ 10-17). In support of her motion, plaintiff submitted the pleadings, the transcript of her deposition testimony, her affidavit, and an ambulance call report.

Defendant opposed the motion, arguing in the main that triable issues of fact existed regarding plaintiff's alleged comparative fault, warranting denial of the motion.

After the motion papers, the opposition, and a reply were submitted to the court, the Court of Appeals handed down its decision in Rodriguez v City of New York.

In Rodriguez, the Court considered "a question that has perplexed courts for some time: Whether a plaintiff is entitled to partial summary judgment on the issue of a defendant's liability, when . . . defendant has arguably raised an issue of fact regarding plaintiff's comparative negligence" (31 NY3d at 315 ["Stated differently, to obtain partial summary judgment in a comparative negligence case, must plaintiffs establish the absence of their own comparative negligence"]). The Court determined that the existence of an open question as to a plaintiff's comparative fault did not bar the granting of summary judgment to the plaintiff on the issue of the defendant's liability (id. at 315, 323-325). Under Rodriguez, a plaintiff's comparative fault (if any) relates to the issue of damages, not the defendant's liability (id. at 318-321). As a result of the Rodriguez decision, a plaintiff is entitled to summary judgment on the issue of the defendant's liability where the motion record establishes, as a matter of law, that the defendant was negligent [*3]and that such negligence was a proximate cause of plaintiff's injuries (see id. at 324).

In October 2018, this court decided plaintiff's summary judgment motion, finding that plaintiff was entitled to summary judgment on the issue of defendant's liability under the Rodriguez framework: plaintiff made a prima facie showing that defendant was negligent and that such negligence was a proximate cause of plaintiff's injuries, and defendant failed to raise a triable issue of fact as to either element. Thus, the court granted plaintiff summary judgment on the issue of defendant's liability. The court declined to afford plaintiff relief with respect to defendant's affirmative defenses relating to plaintiff's alleged comparative fault, noting "that plaintiff did not seek (and the court has not considered) dismissal of defendant's affirmative defense[s] of comparative fault (see CPLR 2214[a])" {**63 Misc 3d at 329}(Castillo v Slupecki, 2018 NY Slip Op 33495[U], *2 [Sup Ct, Bronx County 2018]).

The court's inclusion of the quoted language was not accidental. As noted above, under Rodriguez, a plaintiff's comparative fault (if any) relates to the issue of damages. A plaintiff seeking summary judgment on the issue of "liability" post-Rodriguez is therefore seeking findings that, as a matter of law, the defendant was negligent and that such negligence was a proximate cause of the plaintiff's injuries.^[FN3] In light of Rodriguez, this court's view is that a plaintiff who desires summary judgment dismissing a defendant's affirmative defense (or defenses) relating to the plaintiff's alleged comparative fault should specifically request such relief (see Poon v Nisanov, 162 AD3d 804, 807, 808 [2d Dept 2018] ["Although a plaintiff need not demonstrate the absence of his or her own comparative negligence to be entitled to partial summary judgment as to a defendant's liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where . . . the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence" (citation omitted)]); a plaintiff's motion for summary judgment on the issue of a defendant's liability alone does not carry with it a request for summary judgment dismissing the affirmative defense of comparative fault.^[FN4] Requiring a plaintiff to specifically request summary judgment dismissing a comparative-fault affirmative defense recognizes that a plaintiff's alleged comparative fault relates to damages, not a defendant's liability (see Rodriguez v City of New York, 31 NY3d at 318-321), and is consistent with the principle that a court is generally prohibited from granting relief that a movant has not expressly requested (see Tirado v Miller, 75 AD3d 153, 158 [2d Dept 2010]; see also CPLR 2214 [a]; cf. Frankel v Stavsky, 40 AD3d 918, [*4]918-919 [2d Dept 2007]{**63 Misc 3d at 330} ["a court may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party"]; Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2214:5).

In her present motion seeking limited renewal or reargument of her summary judgment motion, plaintiff asks the court to "tweak" its prior order; plaintiff wants the court to grant her summary judgment dismissing defendant's comparative-fault-based affirmative defenses. Plaintiff argues that renewal is appropriate because Rodriguez constitutes a change in the law that should result in the modification of the prior order. As to reargument, plaintiff argues that the court overlooked that, at the time plaintiff moved for summary judgment, the prevailing law in the First Department was such that a plaintiff seeking summary judgment on "liability" was required to establish his or her freedom from comparative fault, and therefore there was little, if any, reason for plaintiff to separately seek summary judgment dismissing a comparative-fault affirmative defense.

Defendant opposes the renewal-reargument motion, maintaining as to renewal that plaintiff offered no new facts, and, as to reargument, that triable issues of fact exist on the subject of plaintiff's comparative fault. Therefore, defendant argues, neither renewal nor reargument is warranted.

That aspect of plaintiff's motion seeking renewal is denied. Renewal does lie for a change in the law (see CPLR 2221 [e] [2]). Typically the change in the law justifying a renewal motion occurs after the court's initial determination of a motion and before entry of judgment. Here, the change in the law occurred while the motion was sub judice. Moreover, plaintiff's renewal-reargument motion is not premised on the court's failure to recognize a change in the law, for the court applied Rodriguez in deciding the prior motion. Rather, the thrust of plaintiff's renewal-reargument motion is that the court overlooked the state of the law at the time the parties prepared their respective motion submissions, and in doing so overlooked that plaintiff's motion for summary judgment effectively contained a request for summary judgment on the issue of comparative fault. Thus, reargument—not renewal—is {**63 Misc 3d at 331}the procedural device that may afford plaintiff the relief she seeks.^[FN5]

[1] Reargument of plaintiff's prior motion is appropriate (see CPLR 2221 [d] [2] [reargument "shall be based upon matters of fact or law allegedly overlooked . . . by the court in determining the prior motion"]). In deciding plaintiff's prior summary judgment motion, the court overlooked the particular state of the law at the time that motion was made and all papers associated with that motion were submitted. At the time the motion was briefed, plaintiff was required to make a prima facie showing that defendant was negligent, that his negligence was a proximate cause of plaintiff's injuries, and that plaintiff was free from comparative fault. If plaintiff made a prima facie showing of those elements, and defendant failed to raise a triable issue of fact as to one or more of them, plaintiff would have received summary judgment on the issue of "liability." Because prior to Rodriguez summary judgment on the issue of "liability" necessarily included a finding that, as a matter of law, plaintiff was free from comparative fault, a separate request by [*5]plaintiff for dismissal of defendant's affirmative defenses alleging plaintiff's comparative fault would have been superfluous. In considering plaintiff's summary judgment motion solely through the Rodriguez prism, the court overlooked the particular state of the law at the time the motion submissions were prepared and that the motion effectively contained a request for summary judgment on the issue of comparative fault. Therefore, the court did not consider an issue that was contested in the underlying motion submissions: whether, as a matter of law, plaintiff was free from comparative fault.

[2] Upon reargument, that aspect of plaintiff's prior motion seeking summary judgment on the issue of comparative fault is granted. Plaintiff's deposition testimony and affidavit demonstrated that plaintiff waited for a "Walk" signal in her favor before attempting to cross 11th Avenue; that, after she had the "Walk" signal in her favor, she checked both directions of traffic before attempting to cross the street and started to cross after appreciating that it was safe to do so; that she was crossing the street in a marked crosswalk; that she kept a lookout as she crossed the street; and that she was struck in the middle of the street by defendant's vehicle as it was making a left-hand turn from West 51st Street onto 11th Avenue. Those submissions{**63 Misc 3d at 332} established, prima facie, that plaintiff was free from comparative fault (see Hines v New York City Tr. Auth., 112 AD3d 528 [1st Dept 2013]). In opposition, defendant, whose only evidentiary submission was an inadmissible statement (see Oct. 12, 2018 decision and order of the court), failed to raise a triable issue of fact as to plaintiff's alleged comparative fault.

In sum, plaintiff is entitled to summary judgment on the issue of defendant's liability—which was granted in the prior order of the court—and summary judgment on the issue of comparative fault and dismissal of defendant's affirmative defenses alleging plaintiff's comparative fault—which the court grants in this decision and order.

Accordingly, it is hereby ordered that the aspect of plaintiff's motion seeking reargument of that portion of her prior motion seeking summary judgment on the issue of comparative fault is granted, and, upon reargument, defendant's first, sixth, seventh, and eighth affirmative defenses are dismissed; and it is further ordered that plaintiff's motion is otherwise denied.