First and Second Departments Now In Accordance That Plaintiff Is Not Entitled To Summary Judgment If Questions Of Fact Exist As To His Negligence

In Calcano v. Rodriguez, the First Department held that the plaintiff was not entitled to summary judgment against defendant on liability because issues of fact existed as to the plaintiff's own negligence. The significance of this holding is that it marks the first time that the First Department has reached such a determination. Moreover, the First and Second Departments are now consistent with one another on this issue.

Previously, in Tselebis v Ryder Truck Rental, Inc. (72 AD3d 198[2010]), the First Department had specifically held that a plaintiff could be awarded summary judgment on liability despite the existence of questions of fact as to his negligence.

In Roman v A1 Limousine, Inc. (76 AD3d 552, 552-553 [2010]), the Second Department declined to follow Tselebis, noting that it was inconsistent with the decision of the Court of Appeals in Thoma v Ronai (82 NY2d 736, 737 [1993]).

As such, a majority of the First Department stated in Calcano: "Needless to say, it is not this Court's prerogative to overrule or disregard a precedent of the Court of Appeals. Accordingly, like the Second Department, we respectfully decline to follow Tselebis."