In a first-of-its-kind ruling, New York’s Appellate Division, First Department has granted summary judgment in favor of a defendant on the issue of a plaintiff’s comparative negligence. Lewis Brisbois’ New York office handled the matter of Leathers v. Approved Oil Co. of Brooklyn, Inc., decided on January 17, 2023, wherein the plaintiff’s decedent was struck and killed by the defendant’s fuel truck at a Bronx intersection.

The lower court denied both parties’ motions for summary judgment on liability. The Appellate Division modified and held: “defendants should have been granted partial summary judgment on the issue of decedent’s negligence, given the uncontroverted fact that she was crossing against the light while defendant driver had a green light in his favor.” Further, “the issues of whether decedent was solely at fault or whether the parties were comparatively negligent will be determined at trial,” citing Rodriguez v. City of New York, 31 N.Y.3d 312 (2018). The court also refused to grant summary judgment to the plaintiff.

What This Decision Means

Ever since the famous Rodriguez case was decided in 2018, plaintiffs have used it incessantly to obtain partial summary judgment in their favor on the issue of defendants’ partial negligence. It had been widely assumed that the Rodriguez doctrine only benefited plaintiffs. But, as the Leathers decision now makes clear, the Rodriguez doctrine can be used by plaintiffs and defendants alike.

Now, defendants can cite Leathers in support of a motion for summary judgment in their favor on the issue of a plaintiff’s partial negligence. If the motion is granted, the jury will be instructed at trial that they must assign at least 1% of the fault to the plaintiff on the verdict sheet. The jury will then consider whether the plaintiff was solely at fault, or whether the fault will be shared on a sliding scale of percentages (first described in the Rodriguez decision). A defendant-movant who obtains summary judgment in this manner will have the substantial benefit of knowing that the plaintiff will definitely be found partially at fault at the time of trial. This could be a big help during settlement negotiations.


The implications of the ruling are potentially far reaching, as the argument can be made in a wide array of cases. In a products case, a plaintiff who admits failing to read a warning label may be subject to the ruling. A plaintiff in a slip-and-fall action who admits knowing of the defect beforehand may be subject to the ruling. The doctrine may apply to a plaintiff in a motor vehicle case who admits failing to obey a Vehicle and Traffic Law provision (as in Leathers), or to a plaintiff in a construction case who admits failing to heed a relevant warning. In any action where the plaintiff was partially negligent as a matter of law, and that negligence proximately caused the accident, the defendant-movant can cite Leathers.