| Calcano v Rodriguez |
| 2012 NY Slip Op 00110 [91 AD3d 468] |
| Jnury 12, 2012 |
| Appellate Division, First Department |
| Jacinto C. Calcano, Respondent, v Juan I. Rodriguez,Appellant. |
—[*1] Anthony J. Cugini, Jr., Riverdale, for respondent.
Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered August 16, 2010, whichgranted plaintiff's motion for summary judgment on the issue of liability, reversed, on the law,without costs, and the motion denied.
There is no disagreement among the members of this panel as to what the record before usshows. Uncontroverted evidence establishes that defendant made an illegal U-turn in the subjectincident. However, triable issues of fact remain as to whether the motor vehicle accident resultedin part from any failure of plaintiff to exercise due care (by driving at an excessive speed or byfailing to observe defendant's vehicle) and, if so, in what proportion. On these facts, plaintiff wasnot entitled to summary judgment as to liability.
Binding precedent of the Court of Appeals holds that the plaintiff in a negligence actioncannot obtain summary judgment as to liability if triable issues remain as to the plaintiff's ownnegligence and share of culpability for the accident (see Thoma v Ronai, 82 NY2d 736,737 [1993], affg 189 AD2d 635 [1993]; see also Johnson v New York City Tr. Auth., 88 AD3d 321,329-332 [2011, Friedman, J., dissenting in part]). In the incident underlying Thoma, thedefendant's van struck the plaintiff, a pedestrian, as she was crossing an intersection. This Courtaffirmed the denial of the plaintiff's summary judgment motion, stating: "Although defendant didnot dispute plaintiff's averment that she was lawfully in the crosswalk when he struck her withhis van as he turned left, summary judgment was properly denied since a failure to yield the rightof way does not ipso facto settle the question of whether the other party was herself guilty ofnegligence" (189 AD2d at 635-636).
The Court of Appeals affirmed this Court's order in Thoma with the followingexplanation: "The submissions to the nisi prius court . . . demonstrate that [plaintiff]may have been negligent in failing to look to her left while crossing the intersection. Plaintiff'sconcession that she did not observe the vehicle that struck her raises a factual question of herreasonable care. Accordingly, plaintiff did not satisfy her burden of demonstrating the absence ofany material issue of fact and the lower courts correctly denied summary judgment" (82 NY2d at737).
As this Court recognized in a unanimous decision issued two years ago (see Lopez v [*2]Garcia, 67 AD3d 558 [2009]), Thoma stands forthe proposition that a plaintiff moving for summary judgment on the issue of liability in an actionfor negligence must eliminate any material issue, not only as to the defendant's negligence, butalso as to whether the plaintiff's own comparative negligence contributed to the incident. TheSecond Department consistently recognizes that Thoma governs this issue (see Mackenzie v City of New York, 81AD3d 699 [2011]; Bonilla vGutierrez, 81 AD3d 581 [2011]; Roman v A1 Limousine, Inc., 76 AD3d 552, 552-553 [2010]; Cator v Filipe, 47 AD3d 664,664-665 [2008]; Albert v Klein, 15AD3d 509, 510 [2005]). Although this Court departed from the Thoma holding in Tselebis v Ryder Truck Rental, Inc. (72AD3d 198 [2010]), the Second Department has expressly noted that it "disagree[s] [with]and decline[s] to follow th[e] holding" of Tselebis as inconsistent with Thoma(Roman, 76 AD3d at 553). Needless to say, it is not this Court's prerogative tooverrule or disregard a precedent of the Court of Appeals. Accordingly, like the SecondDepartment, we respectfully decline to follow Tselebis.[FN*]
The concurrence appears to recognize that Tselebis represents a significant departurefrom prior law and practice in resolving summary judgment motions in negligence cases.Nevertheless, instead of following the precedent of the Court of Appeals, this Court (prior toTselebis) and the Second Department, the concurrence seeks to preserve Tselebisin some way, even while acknowledging its difficulties. Thus, the concurrence asserts that, whileplaintiff is entitled to summary judgment on the issue of defendant's negligence, defendant isentitled to a trial on liability at which he may argue that, in view of plaintiff's comparative fault(as to which issues remain), "[defendant's] conduct was not a substantial factor in the happeningof the accident"—which, if the jury so found, would mean that defendant is notliable, notwithstanding his proven negligence. The concurrence's approach, while presumablyentailing a highly confusing jury instruction, would not yield any significant benefit in terms ofjudicial economy or fairness to the parties. Further, neither party has asked for this result, eitherbefore the motion court or on appeal. More importantly, however, the concurrence's approachsimply cannot be squared with Thoma, which instructs us simply to deny summaryjudgment to a negligence plaintiff who cannot eliminate all issues as to his or her comparativefault.
Implicitly recognizing the inconsistency of its approach with Thoma, the concurrenceattempts to distinguish Thoma on the ground that, there, the "Court of Appeals did notaddress the question of the defendant's fault." That distinction does not bear scrutiny. InThoma, just as in this case, there was no issue concerning the defendant's negligencebecause, as stated in this Court's affirmed majority opinion, the record established the defendant'snegligence as a matter of law. To reiterate, in Thoma we acknowledged that "defendantdid not dispute plaintiff's averment that she was lawfully in the crosswalk when he struck herwith his van as he turned left" (189 AD2d at 635)—and nevertheless we affirmed thedenial of the plaintiff's summary judgment motion based on the existence of an issue as to herown fault. The Court of Appeals affirmed our determination, also based on the existence of "afactual question of [the [*3]plaintiff's] reasonable care" (82 NY2dat 737). Had any triable issue existed as to the defendant's negligence, there would have been noneed for either this Court or the Court of Appeals to base the denial of summary judgment toplaintiff on the existence of an issue regarding comparative fault. Indeed, absent a recordestablishing the defendant's negligence as a matter of law, there would have been no occasion forany discussion at all of the comparative fault issue.
In sum, the Court of Appeals held in Thoma that a motion for summary judgment asto liability by a negligence plaintiff who cannot eliminate an issue as to his or her owncomparative fault should simply be denied. This holding is binding on us, and we, like theSecond Department, should follow it. Accordingly, we reverse the order appealed from and denyplaintiff's motion for summary judgment as to liability. Concur—Andrias, J.P., Friedmanand RomÁn, JJ.
Catterson and Moskowitz, JJ., concur in a separate memorandum by Catterson, J., as follows:I am compelled to concur with the majority because I believe that the plaintiff's motion forsummary judgment should only have been granted in part and the matter remanded for a trial onliability rather than damages.
It is beyond cavil that summary judgment may be granted only absent issues of material fact.(Andre v Pomeroy, 35 NY2d 361 [1974].) In cases where a question as to a plaintiff'scomparative negligence is raised, the factual issue to be resolved is the extent of theplaintiff's culpable conduct, in other words, whether the defendant's negligence was, indeed, asubstantial factor in events that led to the plaintiff's injuries. (See Derdiarian v FelixContr. Corp., 51 NY2d 308, 315 [1980].)
Hence, it is my view that our previous ruling in Tselebis v Ryder Truck Rental, Inc. (72 AD3d 198 [1st Dept 2010])was incorrectly decided on the basis that CPLR 1411 mandates summary judgment on liabilitybecause the plaintiff's culpable conduct is no longer a bar to recovery. (72 AD3d at 200.) Thatposition assumes that in any action where a defendant is found negligent as a matter of law, hisor her negligence will be, a priori, a substantial factor in the plaintiff's injuries. This is clearly notalways the case.
CPLR 1411 simply adopts the rule of pure comparative fault, that is, theoretically a plaintiffwho is 99% at fault could still recover 1% of damages. Indeed, CPLR 1411 contemplates thepossibility that, where an issue of fact arises about the plaintiff's culpable conduct, occasionally ajury may find that the defendant's negligence was not a substantial factor causing theplaintiff's injuries. "In some cases, of course, the jury may find that plaintiff's culpable conductwas the sole cause of the injuries." (Alexander, Practice Commentaries, McKinney's Cons Lawsof NY, Book 7B, CPLR C1411:1.)
It is well established that the movant for summary judgment has the burden to prove that noissues of material fact exist for trial. (Andre, 35 NY2d at 364-365.) Here, the plaintiffargues, and the defendant does not dispute, that the defendant made an illegal U-turn acrosstraffic as the plaintiff approached. Thus, the plaintiff argues, the defendant was negligent as amatter of law. (Williams v Simpson,36 AD3d 507 [1st Dept 2007]; seealso Barbaruolo v DiFede, 73 AD3d 957 [2d Dept 2010]; Rodriguez v Schwartz,257 AD2d 655 [2d Dept 1999].)[*4]
The defendant, however, equally correctly asserts thateven if the plaintiff had the right-of-way, he was still obliged to be vigilant for oncoming trafficas he traveled down the street. Furthermore, the defendant claims that the plaintiff was travelingin excess of the 30 miles per hour speed limit. (Lopez v Garcia, 67 AD3d 558 [1st Dept 2009]; Hernandez v New York City Tr. Auth.,52 AD3d 367, 368 [1st Dept 2008]; Albert v Klein, 15 AD3d 509 [2d Dept 2005].)
In my view, the defendant correctly contends that the plaintiff's testimony raises an issue oftriable fact as to his exercise of due care. At his deposition, the plaintiff stated that he never sawthe defendant's car prior to the impact. This testimony raises the question of whether he saw whatthere was to be seen.
Moreover, this case is a useful illustration of why the ruling in Tselebis cannot stand.The motion court, adhering to Tselebis, asserted that the plaintiff's culpability is merelyrelevant to diminish recovery in a damages trial; hence summary judgment may begranted as to the defendant's liability. However, the issues of fact raised by the plaintiff's possibleculpable conduct in this case will necessarily impact the answer as to whether the defendant'snegligence as a matter of law was the substantial cause of the plaintiff's injuries.
In my view, the plaintiff was entitled to partial summary judgment; that is, a rulingthat the defendant was negligent as a matter of law with the concomitant instruction to the jury ina subsequent liability trial. Only in that fashion can the plaintiff retain his right to a finding thatthe defendant was negligent while allowing the defendant to argue that even if negligent, hisconduct was not a substantial factor in the happening of the accident. Thoma v Ronai (82NY2d 736 [1993]) does not compel a different result. In Thoma, the Court of Appeals didnot address the question of the defendant's fault. Indeed, in this case, the "defendant has notchallenged the lower [c]ourt's factual determination, and has not disputed the [c]ourt'sdetermination that he was negligent." Hence, the defendant's negligence is uncontested and thecourt could award the plaintiff partial summary judgment against the defendant on that issue.
Footnote *: While we recognize that thereare personal injury cases in which it may be appropriate to grant partial summary judgment as toliability to a plaintiff who has not established his or her own lack of negligence, those are actionssuch as those governed by Labor Law § 240 (1), in which comparative fault is not an issue.