New York Appellate Division Overturns Summary Judgment Against Defendant in Collision But Affirms Dismissal of Affirmative Defenses of Comparative Negligence Against Plaintiff

In a matter illustrating the importance of having a defendant/driver’s affidavit that properly articulates an absolute defense to liability in opposing summary judgment, the defendant trucking company and its driver appealed summary judgment, which had been in favor of the plaintiff and the co-defendant driver against the trucking defendants in a side-swipe collision. 

The appellate court focused on defendant/Rosario’s affidavit, stating he activated his turn signal prior to attempting a lane change, utilized his mirrors, and saw no vehicles prior to attempting to change lanes. 

The court found this met the defendants’ burden to establish a triable issue of fact and precluded summary judgment against the trucking defendants.  

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