Calcano v. Rodriguez

Catterson and Moskowitz, JJ., concur

in a separate memorandum by Catterson, J., as follows: I am compelled to concur with the majority because I believe that the plaintiffs motion for summary judgment should only have been granted in part and the matter remanded for a trial on liability rather than damages.

It is beyond cavil that summary judgment may be granted only absent issues of material fact. (Andre v Pomeroy, 35 NY2d 361 [1974].) In cases where a question as to a plaintiff’s comparative negligence is raised, the factual issue to be resolved is the extent of the plaintiffs culpable…