In this personal injury action, the plaintiff claims that, on December 2, 2006, she tripped and fell on the metal leg of a portable screen in a banquet room at the Seaview Resort and Spa, located in Galloway, New Jersey. Although the screen itself was concealed behind a curtain, one of its legs protruded from the curtain across the area of the floor where the plaintiff was walking. The plaintiff, who resides in New York, is an employee of a New Jersey company, Gund, Inc., and was present in the banquet room in order to receive an award at a dinner which Gund was hosting. She brings this lawsuit against the various companies which allegedly own and/or operate the resort, none of which is a New York or New Jersey domiciliary.

As an affirmative defense, the defendants allege that New Jersey law applies on the issue of plaintiff's comparative negligence. Under NJSA § 2A:15-5.1, a plaintiff in a personal injury action may not recover any damages if the percentage of fault attributable to him or her is greater than 50% of the total fault involved in the accident. In contrast, New York has adopted a "pure" comparative negligence approach pursuant to which a plaintiff's fault may proportionally diminish the plaintiff's recovery but will not preclude such recovery unless the plaintiff was solely at fault. See CPLR 1411.

The plaintiff has now moved for summary judgment striking the defendants' three affirmative defenses (first, second and sixth) which are based on New Jersey's comparative negligence statute. In turn, the defendants have cross-moved for an order declaring that the New Jersey statute applies herein.

Discussion

In tort actions, if, as here, there is a conflict of laws, New York courts apply an "interest analysis," under which the law of the jurisdiction having the greatest interest in the litigation is applied. See Babcock v. Jackson, 12 NY2d 473, 481 (1963). In deciding which state has the prevailing interest, a court uses only those facts and or contacts which relate to the purpose of the particular law in conflict. See Schultz v. Boy Scouts of America, 65 NY2d 189, 197 (1985). [*2]Under this formulation, the significant contacts are, almost exclusively, the parties' domicile and the locus of the tort. Id.

In applying an interest analysis, the court must also determine whether the conflicting laws are intended to regulate conduct or to allocate loss. The parties all agree that New Jersey's comparative negligence statute is intended to allocate loss. Indeed, in the only appellate decision in New York addressing this issue, the Fourth Department has recently ruled that a comparative negligence statute identical to the New Jersey statute is a loss allocation statute. See Burnett v. Columbus McKinnon Corp., 69 AD3d 58 (4th Dept 2009).

In Neumeier v. Kuehner, 31 NY2d 121, 128 (1972), the Court of Appeals held that where, as here, (1) the conflicting state statutes involve loss allocation, (2) the parties are domiciled in different states from each other and (3) no party is domiciled in the state where the accident occurred, the law of the situs of the tort should apply unless "it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants." See also Burnett v. Columbus McKinnon Corp., 887 NYS2d at 409; Bodea v. TransNat Express, 286 AD2d 5, 10 (4th Dept 2001).

Here, the plaintiff has not provided the court with any basis for deviating from the general rule that the law of the situs should apply. Although the plaintiff argues that New Jersey has no substantive interest in enforcing its statute where two non-domiciliaries are involved, such an argument could be made in every case where the statute is intended to allocate loss. In any event, although the plaintiff claims that she works mostly out of New York and only occasionally visits New Jersey in connection with her employment, New Jersey nevertheless has a substantial interest in the enforcement of its statute since the plaintiff, as an employee of a New Jersey-based company, was in New Jersey on the day of the accident in order to attend a dinner which the company hosted. Moreover, as the defendants point out, plaintiff sought and received workers' compensation benefits pursuant to New Jersey law. Since the accident was thus related to the fact that plaintiff's employer is based in New Jersey, that state clearly has at least some interest in applying its substantive law to such an occurrence. See Burnett v. Columbus McKinnon Corp., 887 NYS2d at 410. Under the circumstances, the court is persuaded that New Jersey's comparative negligence statute, and not New York law, should apply in this case.

Accordingly, the plaintiff's motion for summary judgment is denied and the defendants' cross-motion granted. It is hereby declared that New Jersey's comparative negligence statute, as invoked in the defendants' first, second and sixth affirmative defenses, shall apply in this action.

ENTER ORDER

Dated:1/19/10MARYLIN G. DIAMOND, J.S.C.