BILL NUMBER:  S7779

 TITLE OF BILL :

An act to amend the civil practice law and rules, in relation to the
burden of demonstrating comparative negligence

 PURPOSE OF BILL :

To clarify CPLR 1412 and the applicable burden of proof for
establishing culpable conduct as an affirmative defense.

 SUMMARY OF PROVISIONS OF BILL :

This bill would make it clear that the party asserting culpable
conduct as an affirmative defense bears the burden of proof of
establishing the viability of the defense.

 EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER :

Section 1412 of the civil practice law and rules.

 JUSTIFICATION :

In recent years, case law has seemed to diverge from the original
purpose and intent of CPLR 1412, as originally chaptered. L. 1975, Ch.
              

69. CPLR 1412 had codified the affirmative defense of culpable conduct
in diminution of damages, consistent with CPLR 1411, which was also
enacted in that chapter.

CPLR 1412 was adopted at that time upon recommendation of the Judicial
Conference, to join the vast majority of other jurisdictions in
rejecting a plaintiff's contributory negligence as a bar to recovery.
In addressing the provisions of CPLR 1412, the Judicial Conference
noted:

"This section brings New York law on the issue into conformity with
the majority rule and represent the culmination of the gradual but
persistent erosion of the rule that freedom from contributory
negligence must be pleaded and proven by the plaintiff . . . .
Because 'they are both manifestations of the same or similar
considerations . . . . burden of pleading and burden of proof are
usually parallel.' James, Civil Procedure p. 265 (1965). This is
generally true in New York (see 3 Weinstein, Korn & Miller, New York
Civil Practice-CPLR 3018.14 (Matthew Bender)) and there is no reason
to make an exception where one seeks to diminish damages otherwise
recoverable by asserting, pursuant to this article, that the
claimant's culpable conduct contributed to his harm."

Notwithstanding the plain intent of placing the burden of pleading and
proof of a plaintiff's comparative fault on defendant, some courts
have, in recent years, placed upon a personal injury plaintiff moving
for summary judgment the burden of disproving comparative fault as an
element of his or her burden in making that motion. Thus, in numerous
pedestrian knock-down cases, injured plaintiffs, struck while in a
crosswalk, walking with the light, were denied summary judgment on
liability because they failed in their moving papers to demonstrate
the absence of comparative fault, notwithstanding defendants' failure
to demonstrate in their papers that there was comparative fault on
plaintiff's part (see, e.g., Day v. MTA Bus Co., 94 A.D.3d 940 (2nd
Dept. 2012); Rodgers v. Duffy, 87 A.D.3d 1126 (2nd Dept. 2011); Roman
v. Al Limousine, Inc., 76 A.D.3d 552 (2nd Dept. 2010); Yuen Lum v.
Wallace, 70 A.D.3d 1013 (2nd Dept. 2010)). In so ruling, the courts
frequently rely upon the Court of Appeals holding in Thoma v. Ronai,
82 N.Y.2d 736 (1993). However, that decision merely held that, after
all submitted papers had been considered, "plaintiff did not satisfy
her burden of demonstrating the absence of any material issue of
fact." It did not directly address who has the burden of going forward
with evidence of comparative fault on a motion for summary judgment.

This amendment would not overrule Thoma; if, in response to a
plaintiff's motion demonstrating defendant's liability, defendant
presents evidence of plaintiff's comparative fault sufficient to raise
a question of fact, summary judgment would be properly denied.
However, in light of the Legislature's manifest intent to place the
burden of pleading and proving a plaintiff's comparative fault upon
the defendant, there is no reason to reverse that burden, and to place
upon a plaintiff the burden of going forward with proof of a negative
- - i.e., the absence of comparative fault - - in seeking summary
judgment. This is the conclusion reached by noted commentators
(Siegel, New York Practice § 280 (January 2013 Supplement); see
Connors, Can Comparative Fault Stop the Train Known as Summary
Judgment?, NYLJ, 1/16/13), and some thoughtful judges (e.g., Capuano
v. Tishman Construction Corp., 98 A.D.3d 848 (1st Dept. 2012)
(Concurring Op of Justices Saxe and Acosta)).

This bill was proposed by the Committee on Civil Practice Law and
Rules of the New York State Bar Association.

 LEGISLATIVE HISTORY :

New bill, 2016.

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :

None.

 EFFECTIVE DATE :
Immediately, and shall apply to all actions pending or commenced on or
after such effective date.