Culpable conduct claimed in diminution of damages, in accordance with section fourteen hundred eleven, shall be an affirmative defense to be pleaded and proved by the party asserting the defense.
§ 1412.Burden of pleading; burden of proof
Article 14-A. Damage Actions: Effect of Contributory Negligence and Assumption of Risk · Last amended 1975 · Last verified July 21, 2026
In one sentenceCPLR 1412 makes a claimant's comparative fault an affirmative defense, putting the burden on the defendant to plead and prove it rather than requiring the claimant to disprove their own fault.
Full Text of CPLR 1412
Plain-English Summary
Comparative negligence under CPLR 1411 only reduces damages if someone raises it, and CPLR 1412 decides who carries that job. Culpable conduct attributable to the claimant is an affirmative defense. The defendant has to plead it in the answer and then prove it at trial or on a dispositive motion -- the claimant doesn't have to prove they were fault-free to recover in full.
That allocation matters at trial. If a defendant never pleads comparative fault, or pleads it but fails to offer evidence supporting it, the jury has no basis to reduce the claimant's damages on that ground, regardless of what the underlying facts might otherwise suggest.
Frequently Asked Questions
Who has the burden of proving comparative negligence in New York?
The defendant. CPLR 1412 makes the claimant's culpable conduct an affirmative defense that the party relying on it must plead and prove.
Does a plaintiff have to prove they weren't negligent?
No. Because comparative fault is an affirmative defense under CPLR 1412, the burden falls on the defendant to raise and prove it, not on the claimant to disprove it.
What happens if a defendant doesn't plead comparative negligence?
If comparative fault isn't pleaded as an affirmative defense, the defendant generally can't reduce the claimant's damages on that basis at trial.
Is comparative negligence raised in the complaint or the answer?
The answer. As an affirmative defense under CPLR 1412, it belongs to the defendant, who raises it in response to the claimant's complaint.
What does 'affirmative defense' mean for comparative negligence claims?
It means the defendant, not the claimant, bears the burden of both raising the claimant's culpable conduct and proving it before a court can reduce damages under CPLR 1411.
Amendment History
Add, L 1975, ch 69, § 1, eff Sept 1, 1975.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: burden of proof comparative negligence New Yorkaffirmative defense comparative faultCPLR 1412 pleadingwho proves comparative negligence New York