concurrence">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 conduct, in other words, whether the defendant’s negligence was, indeed, a substantial factor in events that led to the plaintiffs injuries. (See Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980].)

Hence, it is my view that our previous ruling in Tselebis v Ryder Truck Rental, Inc. (72 AD3d 198 [1st Dept 2010]) was incorrectly decided on the basis that CPLR 1411 mandates summary judgment on liability because the plaintiff’s culpable conduct is no longer a bar to recovery. (72 AD3d at 200.) That position assumes that in any action where a defendant is found negligent as a matter of law, his or her negligence will be, a priori, a substantial factor in the plaintiffs injuries. This is clearly not always the case.

CPLR 1411 simply adopts the rule of pure comparative fault, that is, theoretically a plaintiff who is 99% at fault could still recover 1% of damages. Indeed, CPLR 1411 contemplates the possibility that, where an issue of fact arises about the plaintiff s culpable conduct, occasionally a jury may find that the defendant’s negligence was not a substantial factor causing the plaintiffs injuries. “In some cases, of course, the jury may find that plaintiff’s culpable conduct was the sole cause of the injuries.” (Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C1411:l.)

It is well established that the movant for summary judgment has the burden to prove that no issues of material fact exist for *472trial. (Andre, 35 NY2d at 364-365.) Here, the plaintiff argues, and the defendant does not dispute, that the defendant made an illegal U-turn across traffic as the plaintiff approached. Thus, the plaintiff argues, the defendant was negligent as a matter of law. (Williams v Simpson, 36 AD3d 507 [1st Dept 2007]; see also Barbaruolo v DiFede, 73 AD3d 957 [2d Dept 2010]; Rodriguez v Schwartz, 257 AD2d 655 [2d Dept 1999].)

The defendant, however, equally correctly asserts that even if the plaintiff had the right-of-way, he was still obliged to be vigilant for oncoming traffic as he traveled down the street. Furthermore, the defendant claims that the plaintiff was traveling in excess of the 30 miles per hour speed limit. (Lopez v Garcia, 67 AD3d 558 [1st Dept 2009]; Hernandez v New York City Tr. Auth., 52 AD3d 367, 368 [1st Dept 2008]; Albert v Klein, 15 AD3d 509 [2d Dept 2005].)

In my view, the defendant correctly contends that the plaintiff’s testimony raises an issue of triable fact as to his exercise of due care. At his deposition, the plaintiff stated that he never saw the defendant’s car prior to the impact. This testimony raises the question of whether he saw what there was to be seen.

Moreover, this case is a useful illustration of why the ruling in Tselebiscannot stand. The motion court, adhering to Tselebis, asserted that the plaintiff’s culpability is merely relevant to diminish recovery in a damages trial; hence summary judgment may be granted as to the defendant’s liability. However, the issues of fact raised by the plaintiffs possible culpable conduct in this case will necessarily impact the answer as to whether the defendant’s negligence as a matter of law was the substantial cause of the plaintiffs injuries.

In my view, the plaintiff was entitled to partial summary judgment; that is, a ruling that the defendant was negligent as a matter of law with the concomitant instruction to the jury in a subsequent liability trial. Only in that fashion can the plaintiff retain his right to a finding that the defendant was negligent while allowing the defendant to argue that even if negligent, his conduct was not a substantial factor in the happening of the accident. Thoma v Ronai (82 NY2d 736 [1993]) does not compel a different result. In Thoma, the Court of Appeals did not address the question of the defendant’s fault. Indeed, in this case, the “defendant has not challenged the lower [c]ourt’s factual determination, and has not disputed the [c]ourt’s determination that he was negligent.” Hence, the defendant’s negligence is uncontested and the court could award the plaintiff partial summary judgment against the defendant on that issue.

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