First Department Calls For Court Of Appeals Review Of Comparative Negligence Issue

In Maniscalco v. New York City Transit Authority, the First Department revisited an issue we reported on in January, adding an express call “for resolution by the Court of Appeals.”  Earlier this year in Calcano v. Rodriguez (91 A.D.3d 468 [2012]), the First Department joined the Second Department in holding that plaintiffs are not entitled to summary judgment on liability when issues of fact exist as to their own negligence. In doing so, the panel expressly disapproved of a 2010 First Department decision in Tselebis v. Ryder Truck Rental, Inc. (72 A.D.3d 198 [2010]).  Now, in Maniscalco, the Court has confirmed its Calcano decision and again rejected Tselebis.  In dissent, Judge Degrasse argued that the Court should not have felt constrained by the Court of Appeals' decision in Thoma v. Ronai (82 N.Y.2d 736 [1993]) because this case raises an argument that was not addressed in Thoma, namely the effect of CPLR 1411.