WWBA May 2017 Newsletter

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May Litigation Tip
✦ CPLR 1412 AND BURDEN OF PROOF ON SUMMARY
JUDGMENT MOTIONS
In the mid-1970’s New York joined the majority of other jurisdictions and rejected a
plaintiff’s contributory negligence as a total bar to recovery. A system of comparative fault was
adopted when the Legislature enacted CPLR 1412 which provides that culpable conduct shall
be an affirmative defense to be pleaded and proved by the party asserting it. Thus, the party that
seeks to diminish damages by pleading that plaintiff was negligent has the parallel burden of
proving the comparable negligence.
Despite CPLR 1412, case law in the Second Department has held where the summary judgment
motion is on liability only, the plaintiff must establish that he or she is free of comparative
fault. Day v. MTA, 94 AD3d 940 (2d Dept 2012); Roman v. A1 Limousine, Inc., 76 AD3d 552 (2d
Dept. 2010). While the First Department, in Tselebis v. Ryder Truck Rental ,Inc., 72 AD3d 198
(1st Dept. 2010) followed the plain intent of CPLR 1412 and held no such showing was required
by the plaintiff, in the more recent decision of Rodriguez v City of New York, 142 AD3d 778 (1st
Dept. 2016) the Court imposed the burden of proof of being free from comparative fault on the
plaintiff. The decisions imposing the burden upon the plaintiff to prove freedom from comparative
fault appear to rely on the Court of Appeals decision in Thoma v. Ronai, 82 NY2d 736
(1993). The Thoma decision has raised much discussion. The decision held plaintiff did not
satisfy her burden of demonstrating the absence of any material fact for summary judgment and
therefore, the lower court properly denied summary judgment. Notably, the Thoma court did not
address whether it was plaintiff’s prima facie burden to establish that she was free from comparative
fault. Yet, after Thoma, the courts seem to have placed that burden upon the plaintiff.
The NYSBA Committee on Civil Practice Law and Rules recognizing the need to clarify
CPLR 1412, proposed an amendment that has been introduced in both the Senate (S.7779) and
Assembly (A.02776). The amendment adds language to CPLR 1412 whereby the party asserting
the affirmative defense “shall have the burden of interposing proof of culpable conduct when
asserting such a defense on a motion for summary judgment or at trial.”
Since the bills remain in committee, a plaintiff moving for summary judgment on liability in
cases in the Second and First Departments should be aware of the present burden of proof and
be prepared to demonstrate freedom from culpable fault in order to be successful on the motion.
Written by Angela Morcone Giannini, Co-Chair, Litigation Committee
Other Co-Chairs: Jacqueline Hattar & Kimberly Sheehan
Report on the Status of Women in Westchester County
from page 6
quartered in Westchester, three are
headed by women. The percentage of
women in executive leadership positions
in the largest seven corporations
in Westchester County is 32%. The report
further stated that of the ten largest
non-profit organizations in
Westchester, three are headed by
women. Women hold 78% of senior
leadership positions, but only 30% of
chief executive officer positions. Interestingly,
the report also noted that
women are more likely than men to be
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registered to vote and are more likely
to vote. Overall, the WWA study generated
a lively discussion on various
important issues affecting women in
Westchester County.
To read the full report, please visit:
www.wwagenda.org ◗
Westchester Women’s Bar Association News
Page 9