Supreme Court, New York County, August 19, 2020

Paris & Chaikin PLLC (Deborah Lara of counsel) for plaintiff.

James E. Johnson, Corporation Counsel (Aaron Washington-Childs of counsel), for City of New York, defendant.

Nadine Rivellese and Jennifer A. Coyne for Consolidated Edison Company of New York, Inc., defendant.

DeSena & Sweeney, LLP (Shawn P. O'Shaughnessy of counsel) for Robinson Kassiem and another, defendants.

Lewis, Brisbois, Bisgaard & Smith LLP (Anthony P. Luckie of counsel) for Verizon New York, Inc., defendant.

Plaintiff Tanya Mallory commenced this action seeking damages for injuries sustained in an October 2, 2013 car accident in which a car owned by defendant Jacob Rivers and driven by defendant Robinson Kassiem collided with a defect in the roadway allegedly owned by codefendants City of New York, Con Edison, and/or Verizon New York, Inc. Plaintiff moves, pursuant to CPLR 3212, for partial summary judgment on liability, arguing that "[d]efendants cannot provide a non-negligent explanation for the collision that occurred, nor can defendants offer any theory of liability that might support a finding that plaintiff was in any way responsible for and/or contributed to the instant accident" (NY St Cts Elec Filing [NYSCEF] Doc No. 54 ¶ 23). Every defendant opposes with similar arguments: that summary judgment is premature because only plaintiff has been deposed, and that [*2]an issue of fact exists with respect to plaintiff's culpability as a passenger based on plaintiff's deposition testimony that she made a "smart" comment which induced the driver to laugh just before the accident. For the reasons below, the court grants the motion.

Summary judgment is a "drastic remedy" and will only be granted in the absence of any material issues of fact (id. ¶ 10). To prevail on a motion for summary judgment, the movant must make a prima facie showing of entitlement, tendering sufficient admissible evidence to demonstrate the absence of any material issues of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824 [2014]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The movant's initial burden is a heavy one; on a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party (Jacobsen, 22 NY3d at 833). If the moving party fails to make its prima facie showing, the court is required to deny the motion, regardless of the sufficiency of the nonmovant's papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). However, if the moving party meets its burden, the burden shifts to the party opposing the motion to establish, by admissible evidence, the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for the failure to do so (Zuckerman{**69 Misc 3d at 642}, 49 NY2d at 560; Jacobsen, 22 NY3d at 833; Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]).

As an initial matter, to the extent that plaintiff focuses on the lack of any affidavit in opposition, as well as the summary judgment standards set forth in Zuckerman (49 NY2d 557), Zuckerman does not limit acceptable evidence to an affidavit. Rather, Zuckerman contemplated, among other things, a "transcript of any examination before trial" (id. at 563). Here, plaintiff testified at an examination before trial that she may have distracted the driver by saying "something smart . . . [w]e were laughing" just prior to the accident (NYSCEF Doc No. 66 at 23, line 25, through 24, line 10). As defendants argue, "[a] passenger in a vehicle is required to exercise reasonable care for his or her own safety" (Posner v Hendler, 302 AD2d 509, 509 [2d Dept 2003] [holding that whether passenger's "failure to protest" the driver's speeding or to request to be let out of the vehicle constituted comparative negligence is a question of fact for the jury], citing Nelson v Nygren, 259 NY 71 [1932]; but see Oluwatayo v Dulinayan, 142 AD3d 113, 117 [1st Dept 2016] [noting that parties should take care not to "conflate( ) (claims) of freedom from culpability with defendants' alleged negligence"]).

Recently, however, the Court of Appeals departed from earlier precedent by holding that "[t]o be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault" (Rodriguez v City of New York, 31 NY3d 312, 324-325 [2018]). This is because, the majority reasoned,

"comparative negligence is not a defense to the cause of action of negligence, because it is not a defense to any element . . . of plaintiff's prima facie cause of action for negligence, and . . . is not a bar to plaintiff's recovery, but rather a diminishment of the amount of damages" (id. at 320 [emphasis omitted]).

Pre-Rodriguez, plaintiff's statement that she "in no way contributed to the occurrence of this accident" (NYSCEF Doc No. 56 ¶ 6), juxtaposed against defendants' citation to plaintiff's "smart" remark, may have justified denial of summary judgment until discovery could be conducted to uncover facts "essential to justify opposition"; to determine, in other words, what role the "smart" remark had, if any, in causing the accident{**69 Misc 3d at 643} (CPLR 3212 [f]; see Collins v McGinley, 158 AD2d 151, 153 [3d Dept 1990] [affirming jury's apportionment of 90% liability to driver and 10% to passenger for distracting driver just prior to accident]; Sartori v Gregoire, 259 AD2d 1004, 1004 [4th Dept 1999] ["it is undisputed that third-party defendant had no verbal or physical contact with defendant once she started her vehicle and drove out of the parking lot onto the main road where the accident occurred" (emphasis added)]; Whalen v Daugherty, 30 AD2d 604, 604 [3d Dept 1968] [passenger made "improper advances"]).

Post-Rodriguez, however, outstanding discovery is not a barrier to partial summary judgment, particularly where the outstanding discovery would bear only on an issue that is irrelevant to plaintiff's liability (see Tsyganash v Auto Mall Fleet Mgt., Inc., 163 AD3d 1033, 1034 [2d Dept 2018] [reversing denial of summary judgment by front car in rear-end collision case, holding that nonmovants "failed to demonstrate how discovery may lead to relevant evidence or that facts essential to opposing the motion were exclusively within the plaintiff's knowledge or control"], citing Rodriguez, 31 NY3d 312; Paget v PCVST-DIL, LLC, 2019 NY Slip Op 31408[U], *6 [Sup Ct, NY County 2019, Freed, J.]; Lewis v Cabrera, 2018 NY Slip Op 32833[U], *3 [Sup Ct, NY County 2018, Silvera, J.] [granting motion for partial summary judgment to passenger in vehicle stopped for more than five seconds before rear-end collision, and holding that "the mere hope that evidence may be uncovered during the discovery process is not sufficient to defeat a motion for summary judgment"], citing Rodriguez, 31 NY3d 312, and Steinberg v Abdul, 230 AD2d 633 [1st Dept 1996]).^[FN*] It is therefore ordered that plaintiff's motion for partial summary judgment (No. 004) is granted; and it is further ordered that the balance of the action shall continue, and the issue of damages shall be determined at trial; and it is further ordered that within 30 days, the parties shall collaborate to resolve any outstanding discovery issues and e-file a discovery stipulation to be so-ordered. If the parties are unable to resolve any discovery issues, they may contact the court to request a conference, identifying the unresolved issues and efforts to resolve them.