A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries. The plaintiff is not required to show freedom from comparative negligence in order to establish his prima facie entitlement to judgment as a matter of law. However, the issue of the plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence.
Bornsztjen v. Zito, NY Slip Op 05706 (2d Dep't November 15, 2023)
