Direct answer
You can still recover. New York follows pure comparative negligence under CPLR § 1411. Your damages are reduced by your percentage of fault, but you can recover even if you are 99 percent responsible. The defendant must plead and prove your share of fault under CPLR § 1412.
In more detail
New York runs one of the most plaintiff-friendly fault systems in the country. A lot of clients walk in convinced their case is dead because they think they did something wrong, like glancing at their phone, jaywalking, or having one drink at dinner. In most states with modified comparative negligence, being 50 or 51 percent at fault zeros out the recovery. New York does not work that way.
Under NY CPLR § 1411, contributory negligence and assumption of risk are no longer absolute defenses. They reduce recovery proportionally. The math is straightforward. If a jury finds you 30 percent at fault and the total damages are $1 million, you recover $700,000. If you are 90 percent at fault on the same $1 million, you recover $100,000. There is no cutoff threshold. Even at 99 percent fault, the math still produces a recovery.
NY CPLR § 1412 places the burden squarely on the defendant. They have to plead comparative negligence as an affirmative defense in the answer, and they have to prove it at trial by a preponderance of the evidence. The plaintiff does not have to prove innocence. If the defense never raises it, or fails to prove it, the jury is not instructed on it at all.
There is one important exception. Under NY Labor Law § 240(1), the Scaffold Law, comparative negligence by the worker is generally not a defense at all. The statute imposes absolute liability on owners and contractors for elevation-related hazards. The only narrow defense is that the worker's actions were the sole proximate cause, or that the worker was a "recalcitrant worker" who refused available safety devices. Ordinary inattention or failure to use a harness that was never offered does not reduce a § 240 recovery.
Outside of § 240, the practical reality is that settlement value usually gets discounted to reflect the risk a jury will assign some fault to the plaintiff. The defense leans hard on this argument in negotiation because it is leverage, not because they have proof. Good counsel pushes back with the specific facts and the lack of admissible evidence on the plaintiff's conduct.
So when a client tells me they were "kind of looking at their phone" or "had a beer two hours before driving," the answer is rarely "your case is dead." The answer is usually "tell me more, because the percentage matters and the defense has to prove it."
What I see in NYC cases
The most common partial-fault scenario in my practice is a pedestrian crossing mid-block who gets hit by a turning vehicle. The defense is reflexive: "She was jaywalking, she's at fault." The reality, after I depose the driver and pull the intersection video, is usually that the driver did not look, was speeding into a turn, or was on the phone, and a jury will apportion 70 to 90 percent to the driver. The case settles in that range.
I tell every client the same thing on day one: be honest with me about what you were doing. I would rather know about the phone glance, the beer, the umbrella in the wind, than have it surface in deposition. Pure comparative is friendly to plaintiffs, but only when we are not surprised.
Related questions
- How do I prove negligence in a New York personal injury case?
- What is New York Labor Law 240?
- How are pain and suffering damages calculated in New York?
Talk to Nick
Call or text (718) 261-0546. Spanish line: (718) 261-0546. Tell me what happened, including the parts you think hurt your case. Use the contact form if that is easier.
Compliance
This page is general legal information about New York comparative negligence law and is not legal advice. No attorney-client relationship is formed by reading this page. Each case is decided on its specific facts. Prior results do not guarantee a similar outcome. Attorney advertising.