A plaintiff is not required to establish his freedom from comparative negligence to be entitled to summary judgment on the issue of liability. However, the issue of the plaintiff's comparative negligence may be decided on a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence.
Ellerin-Diefenbach v. Autumn Sky Dev. Co., Inc., NY Slip Op 04789 (2d Dep't August 3, 2022)
