This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
When the defense in a crash case concedes full liability, its claim that the injured person was partly at fault should be dismissed. Here, the Second Department held that the comparative negligence defense should have been dismissed in the case of a woman struck by a car while walking in a Brooklyn crosswalk, and required the driver’s wife and son to give depositions, but it did not strike the defendant’s answer over video disclosed late, and it did not allow a demand for punitive damages.
The case
- Court
- Appellate Division, Second Department
- Decided
- October 28, 2026
- Case
- Cuautle-Rosas v Caprio
- Citation
- 2026 NY Slip Op 06280
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
In June 2018, the plaintiff sued the driver of a car that struck her while she was walking within a crosswalk at an intersection in Brooklyn. He answered and raised comparative negligence as a defense, meaning a claim that she was partly at fault. In April 2021, she asked the Supreme Court, Kings County, to strike his answer, or at least that defense, because certain video footage was not disclosed on time. She also asked to add a demand for punitive damages, based on the late video and on what she alleged was his reckless driving, and to require his wife and son, who were not parties, to appear for depositions. The driver and his wife and son asked the court to quash the subpoenas served on the wife and son. In two orders dated May 3, 2021, the court denied her requests and quashed the subpoenas, and she appealed. The driver later died, and his wife, as personal representative of his estate, took his place as the defendant.
The holding
The Second Department ruled for the plaintiff on two points and against her on two. First, “[i]nasmuch as the defendant has conceded full liability for the accident at issue,” the comparative negligence defense should have been dismissed (2026 NY Slip Op 06280, *2). Second, the answer stays. Striking an answer is a “drastic remedy,” “inappropriate absent a clear showing that the failure to comply with discovery demands or court-ordered discovery was willful and contumacious” (id.), and the plaintiff “failed to make a clear showing that the defendant’s failure to disclose certain video footage was the product of willful, contumacious, or bad faith conduct” (id.). Third, the demand for punitive damages was “patently devoid of merit” (id.); as for the alleged reckless driving, the plaintiff’s allegations “fell short of the level of moral culpability necessary to support a demand for punitive damages” (id.). Fourth, the wife and son must appear for depositions, because the plaintiff showed that conducting their depositions “may result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” (id.).
What changed
Nothing new: this applies settled law.
What it means
- Comparative negligence can reduce what an injured person recovers. When the defense concedes full liability, that defense no longer has a place in the case.
- Video disclosed late is not, by itself, enough to strike a defendant’s answer. The court requires a clear showing that the failure was willful, contumacious, or in bad faith.
- The court described punitive damages as available “only where the actions of the alleged tortfeasor constitute either gross recklessness or intentional, wanton, or malicious conduct aimed at the public generally or were activated by evil or reprehensible motives” (2026 NY Slip Op 06280, *2).
- People who are not parties, including a driver’s family members, may be required to give depositions when the party asking shows that the testimony may lead to relevant evidence.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
A pedestrian struck in a crosswalk may still face a claim that she was partly at fault. Here, that claim ended because the defense conceded full liability. The rest of the decision is a reminder of how high the bar is for the harshest remedies: video disclosed late did not cost the defendant its answer without proof of willful, contumacious, or bad faith conduct, and alleged reckless driving did not support punitive damages. Two lessons. 1. If you are struck by a car while crossing, and your medical condition allows, note the crosswalk, the traffic signal, and any cameras nearby, and get legal advice promptly; camera footage may be kept only for a short time (see our entry on Fernandez v Port Authority). 2. For lawyers, when the defense concedes liability, move to dismiss the comparative negligence defense, and ask for any video early and in writing, so that a later delay can be measured against a clear demand. A concession is only as useful as the order that enforces it.
Topics
Court: Second Department. Year: 2026. Statutes: CPLR 3101(a)(1); CPLR 3126. Result: modified.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 28, 2026. Posted October 28, 2026.
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