Opinion
11530N Index 302990/12
05-14-2020
Jose SILVERIO, Plaintiff–Appellant, v. FORD MOTOR COMPANY, et al., Defendants–Respondents.
Alexander J. Wulwick, New York, for appellant. Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Elliott J. Zucker of counsel), for respondents.
Alexander J. Wulwick, New York, for appellant.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Elliott J. Zucker of counsel), for respondents.
Gische, J.P., Kapnick, Oing, Gonza´lez, JJ.
Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about October 15, 2019, which granted defendants' motion to vacate a judgment, same court and Justice, entered July 5, 2019, apportioning 100% liability to defendants based on a prior order of this Court that granted plaintiff partial summary judgment on liability, unanimously affirmed, without costs.
The IAS court providently exercised its discretion in granting defendants' motion to vacate a judgment, apportioning 100% liability to them before a trial on the issue of comparative negligence (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003] ). Contrary to plaintiff's reading of this Court's decision in Silverio v. Ford Motor Co., 168 A.D.3d 608, 90 N.Y.S.3d 894 [1st Dept. 2019], this Court did not make a finding on plaintiff's comparative negligence or lack thereof, but held only that plaintiff had established defendants' liability in connection with the motor vehicle accident. The Court also stated that plaintiff did not need to prove that he was not comparatively negligent in order to obtain partial summary judgment on the issue of defendants' liability, based on Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018]. Plaintiff's interpretation of this Court's decision in Silverio, 168 A.D.3d 608, 90 N.Y.S.3d 894 would require finding that he was not comparatively negligent, despite the fact that he never moved for summary judgment on defendant's affirmative defense of comparative negligence or introduced evidence to support his contention that he did not contribute to the accident (see Poon v. Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept. 2018] ; see also Wray v. Galella, 172 A.D.3d 1446, 1448, 101 N.Y.S.3d 401 [2d Dept. 2019] ).
The issue of comparative fault should have been left to a jury in determining damages (see Cutaia v. Board of Mgrs. of the Varick St. Condominium, 172 A.D.3d 424, 100 N.Y.S.3d 221 [1st Dept. 2019] ; Bokum v. Sera Sec. Servs., LLC, 165 A.D.3d 535, 86 N.Y.S.3d 53 [1st Dept. 2018] ). Thus, the IAS court properly vacated the judgment apportioning all liability to defendants before a trial on comparative negligence.
We have considered the remaining arguments and find them unavailing.