In a decision dated November 27, 2024, the Appellate Division, Second Department modified the lower Court’s decision by adhering to that portion of the decision which granted plaintiff summary judgment on liability while reinstating our clients Michael Colonna and Royal Realty Corp.’s affirmative defense of comparative fault, which was dismissed by the lower Court. This personal injury action arises out of a motor vehicle accident that occurred on February 9, 2021, on 49th Street at its intersection with Second Avenue in New York, New York. Before depositions, plaintiff moved for summary judgment on liability as well as the dismissal of our clients’ comparative fault affirmative defense, based on the fact that his vehicle was hit in the rear. In opposing plaintiff’s motion, we argued that there is a non-negligent explanation for the accident—that plaintiff stopped short for no apparent reason—which precludes summary judgment in favor of plaintiff on the issue of liability. The lower Court granted plaintiff summary judgment on liability and dismissed our clients’ affirmative defense of comparative fault. On appeal, although the Second Department affirmed summary judgment in plaintiff’s favor on liability, it reinstated our clients’ comparative fault affirmative defense. Prior to this decision, our clients were confined to a damages-only trial with no ability to offset plaintiff’s damages due to his own culpable conduct in how he operated his vehicle, i.e., there would have been no apportionment of fault to plaintiff because our clients’ comparative fault affirmative defense had been dismissed. As a result of this decision, our clients’ can now argue that plaintiff was also at fault, reducing the damages attributed to our clients.

Casimiro Reyes Martinez v. Michael Colonna et al., 2024 WL 4897684, – N.Y.S.3d – (2d Dep’t 2024)