New York civil procedure is a unique subject. Just when you think you have your arms around a provision and the case law in a particular area has been settled, a debate erupts over what is seemingly a basic point. The CPLR will celebrate “The Big 5-0″ later this year, but there are still many important issues that have not been decided during the law’s half-century reign. The issue of whether a question of fact regarding plaintiff’s comparative fault can defeat a motion for summary judgment, even though defendant is negligent as a matter of law, is at the top of the list.
When Nobody Is at the Wheel
While it takes a special set of facts, or a statute imposing absolute liability such as Labor Law §240 (a.k.a. the Scaffold Law), summary judgment can indeed be awarded to the plaintiff in a negligence case. That point was settled even before the CPLR took effect in 1963. Who can forget the classic case of Di Sabato v. Soffes, 9 A.D.2d 297 (1st Dept. 1959), vigorously debated by many of us in our first year of law school in torts class. The plaintiffs were working as counter girls in a corner drugstore in New York City, minding to the needs of customers, when a car crashed through the wall of the building, dislodging “coffee urns and window cases.” This equipment struck plaintiffs, who were rendered unconscious and taken to the hospital with serious injuries.
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