Wednesday, October 28, 2015

Summary judgment in an auto accident action.

Practice point:  The Appellate Division affirmed the denial of plaintiff's motion for summary judgment as to liability.  As there can be more than one proximate cause of an accident, a plaintiff has the burden of establishing, as a matter of law, that he or she is free from comparative negligence. Here, in support of its motion, plaintiff submitted a transcript of defendant's deposition testimony which failed to establish that defendant's alleged statutory violation was the sole proximate cause of the accident and that plaintiff's conduct did not contribute to the happening of the accident.

Student note:  In light of plaintiff's failure to meet its prima facie burden, the Appellate Division did not consider the sufficiency of the opposing papers.

Case:  Frey v. Richmond Hill Lumber & Supply, NY Slip 07617 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A contractual forum selection clause contained in a cruise passenger ticket.