Preview
INDEX NO. 151648/2014
(FILED: NEW YORK COUNTY CLERK 0671072015 04:39 PM
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 06/10/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ALBERTO COLLADO, Index No. 151648/14
AFFIRMATION IN
SUPPORT
-against-
ERMOGENO PERALTA and
MIGUEL A. RODRIGUEZ-ACEVAD,
Defendants.
ee sucdednccensanenen,
HARLAN WITTENSTEIN, an attorney duly admitted to practice law before the
Courts of the State of New York hereby affirms upon information and belief and under
penalty of perjury as follows:
1 That I am associated with the firm of TARASOV & ASSOCIATES, P.C.,
attorneys of record for plaintiff Alberto Collado in the above matter and as such, am
fully familiar with the facis and circumsiaiices her afier contained; the source of my
knowledge and information being the materials maintained by my office in the course
of the handling of this claim.
>
2 This Affirmation is submitted in support of plaintiff's motion seeking
summary judgment on the issue of liability pursuant to CPLR §3212. As will be discussed
herein, the defendant failed to yield the right of way and made a left turn directly into
—3-
plaintiff's bicycle. As such, pursuant to the applicable case law, summary judgment must be
granted as to the issue of liability.
STATEMENT OF PROCEDURAL FACTS
3 Plaintiff commenced this action by service of a Summons and Verified
Complaint on or about March 11, 2014. Issue was duly joined by service of an Answer
on behalf of the defendant dated May 30, 2014. Annexed as Exhibit “A” are copies of
those pleadings with affidavits of service. With their answer, defendant admitted
several relevant facts, including that the defendant Rodriguez-Acevedo was the owner
of the subject motor vehicle and that defendant Peralta operated his motor vehicle with
the consent of the owner.
4 Thereafter, discovery commenced and plaintiff served a Verified Bill of
Particulars. Annexed as Exhibit “B” is a copy of same, which was served on or about
September 24, 2014. Neither defendant has appeared for an examination before trial
even though it was previously scheduled. Plaintiff appeared for an examination before
trial on April 15. 2015.
STATEMENT OF SUBSTANTIVE FACTS
5 This action stems from a motor vehicle versus bicycle collision that
occurred on November 2, 2013 within the intersection of Avenue C and East 6" Street,
County of New York, State of New York. Plaintiff was riding his bicycle within the
bicycle lane on Avenue C (northbound) and was struck when he was more than halfway
—4-
through the intersection. Annexed as Exhibit “C” is the affidavit of plaintiff Alberto
Collado with 2 photographs that he authenticated in his affidavit. These 2 photos were
exchanged with the defense during discovery. Mr. Collado stated the following key
points in his affidavit:
I was riding my bicycle when I was struck by a vehicle driven by defendant
Peralta and owned by defendant Rodriguez-Acevado.
I was riding my bicycle on Avenue C in the designated bicycle lane at the
time of the collision. I was travelling in the bicycle lane for at least 1 block
and never left the lane in that 1 block.
The collision occurred inside the intersection of East 6th Street and Avenue
C, in Manhattan.
The intersection, on both sides of Avenue C, is controlled by a traffic light
that has red, yellow and green for traffic on Avenue C. There are no turning
arrows in either direction.
My bicycle was equipped with reflectors and blinking lights that go on and
off. They were operating at the time of the collision.
As I was approaching the intersection, traveling northbound (towards higher
numbered streets), the traffic light in my direction was green. I saw the green
light as | was approaching the intersection.
After I entered the intersection, the light tuned yellow.
The speed of my bicycle was between 10 - 15 miles per hour as I was heading
towards the intersection.
-5-
As I approached the intersection, the defendant’s vehicle was stopped in the
crosswalk, in the opposite lane. The car was stopped and was facing straight
ahead.
I was more than halfway through the intersection when I was hit by the
defendant’s minivan, which had turned left while I was travelling straight
ahead.
The driver of the minivan did not honk his horn before hitting me.
Based on the location of the minivan when he was stopped, it is clear that he
made a quick left turn and hit me in the intersection.
From the time that I entered the intersection until I was hit by the minivan
was between 1-2 seconds.
The front of the minivan hit my left leg and left foot and sent me flying to the
right.
At the time of the collision, I was travelling below the speed limit, in the
bicycle lane, and had the right of way.
6. Also annexed with Exhibit “C” are 2 photographs depicting the intersection in
in his affidavit and is thus admissible
question, which was authenticated by plaintiff
herein. As clearly described in his affidavit, plaintiff was traveling straight, with the
right of way, when defendant’s vehicle suddenly made a left turn into his bicycle.
Plaintiff indicates that he was already into the intersection at the moment defendant
began to turn and that he had no time to avoid the accident. He further describes the
point of impact as his left leg and foot.
-6-
LEGAL ARGUMENT
7 Summary Judgment is proper as defendant can offer no factual basis or
non-negligent legal theory explaining the within accident. Where no triable issues of fact exist,
requiring a trial on the issue of liability is a waste of judicial time and effort. The Court of
Appeals has held that summary judgment is designed to expedite all Civil cases by disposing
from the Trial Calendar all claims which may be resolved properly as a matter of law. Andre
v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974). Additionally, where there is no
genuine issue to be resolved at trial, liability should be summarily decided and the matter be
allowed to proceed with respect to damages and the question of whether plaintiff has sustained
a serious injury as defined by § 5102 of the Insurance Law.
8 The New York Vehicle and Traffic Law §1141 sets forth the
responsibilities for a left-turning driver as follows:
The driver ofa vehicle intending to turn to the left within an
intersection or into an alley, private road, or driveway shall
yield the right of way to any vehicle approaching from the
opposite direction which is within the intersection or so close
as to constitute an immediate hazard.
Given the within facts, defendant’s negligence for failing to yield to plaintiff’s
oncoming bicycle, which constituted an immediate hazard, is apparent. The First and
Second Department have consistently held that a motorist who makes a left turn directly
into the path of another vehicle as it legally proceeded with the right of way, was
negligent as a matter of law. See Sarac-Marshall v. Mikalopas, 125 A.D.3d 570,
~7-
4 N.Y.S.3d 195 (1 Dep't, 2015), Carroll-Batista v Bennett, 122 A.D.3d 661, 995
N.Y.S.2d 718 (2d Dep’t 2014); Simeone v Cianciolo, 118 A.D.3d 864, 988 N.Y.S.2d
257 (2d Dep’t 2014).
Sarac-Marshall v. Mikalopas, 1“ Dept — 2015
9. The Sarac-Marshall case was recently decided by the 1" Department. The
issues in that case are similar to our case.
10. In Sarac-Marshall, Plaintiff was riding a bicycle southbound when the
vehicle driven by defendant made a left-hand turn from the northbound lane, over the
double yellow line, causing a collision between the vehicle and plaintiff's bicycle.
Plaintiff demonstrated that defendant was negligent by submitting defendant's testimony
that he made a left-hand turn without ensuring that it was safe to do so ( see Vehicle and
Traffic Law § 1141; see also Foreman v. Skeif, 115 A.D.3d 568, 569, 982 N.Y.S.2d 314
At
O1AT\ }. Accorain,
A écordin plai tiff showed
sho dt thatat def dant { failed
on car
de fen faued “to see that which,
[ist Dept. 2014) gly, plaintiff to see
through the proper use of senses, should have been seen” ( Griffin v. Pennoyer, 49
A.D.3d 341, 342, 852 N.Y.S.2d 765 [1st Dept.2008] ). Plaintiff also demonstrated his
freedom from comparative negligence by submitting evidence that, among other things,
he was traveling below the speed limit in his lane of travel at the time of the accident,
and that he saw the vehicle driven by defendant to his left for a “ brief second or two”
before the collision, giving him no time to react (see Foreman, 115 A.D.3d at 569, 982
—~8-
N.Y.S.2d 314; Espinozav. Loor, 299 A.D.2d 167, 168, 753 N.Y.S.2d 29
[Ist Dept.2002] )
11. In this case, the defendant has not yet appeared for his deposition. However.
plaintiff made a prima facie case based on his affidavit and supporting photographs
Plaintiff's Freedom From Comparative Negligenc
12. In our case, Mr. Collado was traveling towards the intersection, in the bicycle
lane, below the speed limit. In paragraph 29 of Mr. Collado’s affidavit he stated the
following:
From the time that I entered the intersection until I was hit by the minivan was
between 1-2 seconds.
13. As stated in Sarac-Marshall
Plain
Pair cmonstrated nis
ti GSO Gemonstratea his treeao
freedom from comparative negligencecet by
submitting evidence that, among other things, he was traveling below the speed limit in
his lane of travel at the time of the accident, and that he saw the vehicle driven by
defendant to his left for a * brief second or two” before the collision, giving him no time
to react (see Foreman, 115 A.D.3d at 569, 982 N.Y.S.2d 314: Espinoza v. Loor, 299
A.D.2d 167, 168, 753 N.Y.S.2d 29 [1st Dept.2002] )
=9=
14. Mr. Collado stated that when he first saw the defendant’s vehicle, *...the
defendant’s vehicle was stopped in the crosswalk, in the opposite lane. The car was
stopped and was facing straight ahead. (paragraph 20).” Moreover, the collision
occurred within 1-2 seconds after Mr. Collado entered the intersection (paragraph 29).
15. Clearly, under the standard set by the First Department, Mr. Collado was not
comparatively negligent because he had no more than 1-2 seconds to react.
16. In the 2’ Department, similar decisions have been reached regarding alleged
comparative negligence of the plaintiff. In Marcel v. Sanders, 123 A.D.3d 1097, 1
N.Y.S.3d 230 (2nd Dept.,2014), which was a “right of way” case involving VTL 1143,
the court held that “a driver with the right-of-way who has only seconds to react to a
vehicle which has failed to yield is not comparatively negligent for failing to avoid the
collision”
17. In this case, since Mr. Collado had no more than 1-2 seconds to react, he is
not comparatively negligent as a matter of law.
-10-
Defendant’s Violated VTL 1146
18. According to VTL 1146 (a), every driver of a vehicle shall exercise due
care to avoid colliding with any bicyclist, pedestrian, or domestic animal upon any
roadway and shall give warning by sounding the horn when necessary. In this case, the
defendant driver failed to honk his horn before the impact occurred (paragraph 25 of
plaintiff's affidavit). The unexcused failure to observe the standard imposed by statute
is negligence, Martin v Herzog, 228 NY 164, 126 NE 814 (1920).
19. The defendant has a statutory duty to use due care to avoid colliding with
bicyclists on the roadway, as well as a common-law duty to see that which he should
have seen through the proper use of his senses ( see Domanova v. State of New York,
41 A.D.3d 633, 634, 838 N.Y.S.2d 644: Larsen v. Spano, 35 A.D.3d 820, 822, 827
N.Y.S.2d 276).
CONCLUSION
20, Based
ase on
O thee case
case law noted
oted above,
abo’ the€ admissible
ad ussible evidence
€ herein and the
defendant’s inability to come forward with a reasonable explanation for his negligent
action, plaintiff's motion for summary judgment on the issue of liability must be
granted. Defendant failed to yield the right of way while turning left and also failed to
honk his horn prior to impact. Defendant violated 2 statutes of the Vehicle and Traffic
Law, and failed to see what was to be seen.
-ll-
WHEREFORE it is respectfully requested that the within motion be granted in its
entirety together with such other and further relief as to this Court seems just and proper
Dated: Brooklyn, New York
June 9, 2015
Harlan Wittenstein
=[9=
Preview
INDEX NO. 151648/2014 (FILED: NEW YORK COUNTY CLERK 0671072015 04:39 PM NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 06/10/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK eneen nnn eneenenenennennn meccewenan ene , eenennennn nn enennenenennenens ALBERTO COLLADO, Index No. 151648/14 AFFIRMATION IN SUPPORT -against- ERMOGENO PERALTA and MIGUEL A. RODRIGUEZ-ACEVAD, Defendants. ee sucdednccensanenen, HARLAN WITTENSTEIN, an attorney duly admitted to practice law before the Courts of the State of New York hereby affirms upon information and belief and under penalty of perjury as follows: 1 That I am associated with the firm of TARASOV & ASSOCIATES, P.C., attorneys of record for plaintiff Alberto Collado in the above matter and as such, am fully familiar with the facis and circumsiaiices her afier contained; the source of my knowledge and information being the materials maintained by my office in the course of the handling of this claim. > 2 This Affirmation is submitted in support of plaintiff's motion seeking summary judgment on the issue of liability pursuant to CPLR §3212. As will be discussed herein, the defendant failed to yield the right of way and made a left turn directly into —3- plaintiff's bicycle. As such, pursuant to the applicable case law, summary judgment must be granted as to the issue of liability. STATEMENT OF PROCEDURAL FACTS 3 Plaintiff commenced this action by service of a Summons and Verified Complaint on or about March 11, 2014. Issue was duly joined by service of an Answer on behalf of the defendant dated May 30, 2014. Annexed as Exhibit “A” are copies of those pleadings with affidavits of service. With their answer, defendant admitted several relevant facts, including that the defendant Rodriguez-Acevedo was the owner of the subject motor vehicle and that defendant Peralta operated his motor vehicle with the consent of the owner. 4 Thereafter, discovery commenced and plaintiff served a Verified Bill of Particulars. Annexed as Exhibit “B” is a copy of same, which was served on or about September 24, 2014. Neither defendant has appeared for an examination before trial even though it was previously scheduled. Plaintiff appeared for an examination before trial on April 15. 2015. STATEMENT OF SUBSTANTIVE FACTS 5 This action stems from a motor vehicle versus bicycle collision that occurred on November 2, 2013 within the intersection of Avenue C and East 6" Street, County of New York, State of New York. Plaintiff was riding his bicycle within the bicycle lane on Avenue C (northbound) and was struck when he was more than halfway —4- through the intersection. Annexed as Exhibit “C” is the affidavit of plaintiff Alberto Collado with 2 photographs that he authenticated in his affidavit. These 2 photos were exchanged with the defense during discovery. Mr. Collado stated the following key points in his affidavit: I was riding my bicycle when I was struck by a vehicle driven by defendant Peralta and owned by defendant Rodriguez-Acevado. I was riding my bicycle on Avenue C in the designated bicycle lane at the time of the collision. I was travelling in the bicycle lane for at least 1 block and never left the lane in that 1 block. The collision occurred inside the intersection of East 6th Street and Avenue C, in Manhattan. The intersection, on both sides of Avenue C, is controlled by a traffic light that has red, yellow and green for traffic on Avenue C. There are no turning arrows in either direction. My bicycle was equipped with reflectors and blinking lights that go on and off. They were operating at the time of the collision. As I was approaching the intersection, traveling northbound (towards higher numbered streets), the traffic light in my direction was green. I saw the green light as | was approaching the intersection. After I entered the intersection, the light tuned yellow. The speed of my bicycle was between 10 - 15 miles per hour as I was heading towards the intersection. -5- As I approached the intersection, the defendant’s vehicle was stopped in the crosswalk, in the opposite lane. The car was stopped and was facing straight ahead. I was more than halfway through the intersection when I was hit by the defendant’s minivan, which had turned left while I was travelling straight ahead. The driver of the minivan did not honk his horn before hitting me. Based on the location of the minivan when he was stopped, it is clear that he made a quick left turn and hit me in the intersection. From the time that I entered the intersection until I was hit by the minivan was between 1-2 seconds. The front of the minivan hit my left leg and left foot and sent me flying to the right. At the time of the collision, I was travelling below the speed limit, in the bicycle lane, and had the right of way. 6. Also annexed with Exhibit “C” are 2 photographs depicting the intersection in in his affidavit and is thus admissible question, which was authenticated by plaintiff herein. As clearly described in his affidavit, plaintiff was traveling straight, with the right of way, when defendant’s vehicle suddenly made a left turn into his bicycle. Plaintiff indicates that he was already into the intersection at the moment defendant began to turn and that he had no time to avoid the accident. He further describes the point of impact as his left leg and foot. -6- LEGAL ARGUMENT 7 Summary Judgment is proper as defendant can offer no factual basis or non-negligent legal theory explaining the within accident. Where no triable issues of fact exist, requiring a trial on the issue of liability is a waste of judicial time and effort. The Court of Appeals has held that summary judgment is designed to expedite all Civil cases by disposing from the Trial Calendar all claims which may be resolved properly as a matter of law. Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974). Additionally, where there is no genuine issue to be resolved at trial, liability should be summarily decided and the matter be allowed to proceed with respect to damages and the question of whether plaintiff has sustained a serious injury as defined by § 5102 of the Insurance Law. 8 The New York Vehicle and Traffic Law §1141 sets forth the responsibilities for a left-turning driver as follows: The driver ofa vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard. Given the within facts, defendant’s negligence for failing to yield to plaintiff’s oncoming bicycle, which constituted an immediate hazard, is apparent. The First and Second Department have consistently held that a motorist who makes a left turn directly into the path of another vehicle as it legally proceeded with the right of way, was negligent as a matter of law. See Sarac-Marshall v. Mikalopas, 125 A.D.3d 570, ~7- 4 N.Y.S.3d 195 (1 Dep't, 2015), Carroll-Batista v Bennett, 122 A.D.3d 661, 995 N.Y.S.2d 718 (2d Dep’t 2014); Simeone v Cianciolo, 118 A.D.3d 864, 988 N.Y.S.2d 257 (2d Dep’t 2014). Sarac-Marshall v. Mikalopas, 1“ Dept — 2015 9. The Sarac-Marshall case was recently decided by the 1" Department. The issues in that case are similar to our case. 10. In Sarac-Marshall, Plaintiff was riding a bicycle southbound when the vehicle driven by defendant made a left-hand turn from the northbound lane, over the double yellow line, causing a collision between the vehicle and plaintiff's bicycle. Plaintiff demonstrated that defendant was negligent by submitting defendant's testimony that he made a left-hand turn without ensuring that it was safe to do so ( see Vehicle and Traffic Law § 1141; see also Foreman v. Skeif, 115 A.D.3d 568, 569, 982 N.Y.S.2d 314 At O1AT\ }. Accorain, A écordin plai tiff showed sho dt thatat def dant { failed on car de fen faued “to see that which, [ist Dept. 2014) gly, plaintiff to see through the proper use of senses, should have been seen” ( Griffin v. Pennoyer, 49 A.D.3d 341, 342, 852 N.Y.S.2d 765 [1st Dept.2008] ). Plaintiff also demonstrated his freedom from comparative negligence by submitting evidence that, among other things, he was traveling below the speed limit in his lane of travel at the time of the accident, and that he saw the vehicle driven by defendant to his left for a “ brief second or two” before the collision, giving him no time to react (see Foreman, 115 A.D.3d at 569, 982 —~8- N.Y.S.2d 314; Espinozav. Loor, 299 A.D.2d 167, 168, 753 N.Y.S.2d 29 [Ist Dept.2002] ) 11. In this case, the defendant has not yet appeared for his deposition. However. plaintiff made a prima facie case based on his affidavit and supporting photographs Plaintiff's Freedom From Comparative Negligenc 12. In our case, Mr. Collado was traveling towards the intersection, in the bicycle lane, below the speed limit. In paragraph 29 of Mr. Collado’s affidavit he stated the following: From the time that I entered the intersection until I was hit by the minivan was between 1-2 seconds. 13. As stated in Sarac-Marshall Plain Pair cmonstrated nis ti GSO Gemonstratea his treeao freedom from comparative negligencecet by submitting evidence that, among other things, he was traveling below the speed limit in his lane of travel at the time of the accident, and that he saw the vehicle driven by defendant to his left for a * brief second or two” before the collision, giving him no time to react (see Foreman, 115 A.D.3d at 569, 982 N.Y.S.2d 314: Espinoza v. Loor, 299 A.D.2d 167, 168, 753 N.Y.S.2d 29 [1st Dept.2002] ) =9= 14. Mr. Collado stated that when he first saw the defendant’s vehicle, *...the defendant’s vehicle was stopped in the crosswalk, in the opposite lane. The car was stopped and was facing straight ahead. (paragraph 20).” Moreover, the collision occurred within 1-2 seconds after Mr. Collado entered the intersection (paragraph 29). 15. Clearly, under the standard set by the First Department, Mr. Collado was not comparatively negligent because he had no more than 1-2 seconds to react. 16. In the 2’ Department, similar decisions have been reached regarding alleged comparative negligence of the plaintiff. In Marcel v. Sanders, 123 A.D.3d 1097, 1 N.Y.S.3d 230 (2nd Dept.,2014), which was a “right of way” case involving VTL 1143, the court held that “a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” 17. In this case, since Mr. Collado had no more than 1-2 seconds to react, he is not comparatively negligent as a matter of law. -10- Defendant’s Violated VTL 1146 18. According to VTL 1146 (a), every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal upon any roadway and shall give warning by sounding the horn when necessary. In this case, the defendant driver failed to honk his horn before the impact occurred (paragraph 25 of plaintiff's affidavit). The unexcused failure to observe the standard imposed by statute is negligence, Martin v Herzog, 228 NY 164, 126 NE 814 (1920). 19. The defendant has a statutory duty to use due care to avoid colliding with bicyclists on the roadway, as well as a common-law duty to see that which he should have seen through the proper use of his senses ( see Domanova v. State of New York, 41 A.D.3d 633, 634, 838 N.Y.S.2d 644: Larsen v. Spano, 35 A.D.3d 820, 822, 827 N.Y.S.2d 276). CONCLUSION 20, Based ase on O thee case case law noted oted above, abo’ the€ admissible ad ussible evidence € herein and the defendant’s inability to come forward with a reasonable explanation for his negligent action, plaintiff's motion for summary judgment on the issue of liability must be granted. Defendant failed to yield the right of way while turning left and also failed to honk his horn prior to impact. Defendant violated 2 statutes of the Vehicle and Traffic Law, and failed to see what was to be seen. -ll- WHEREFORE it is respectfully requested that the within motion be granted in its entirety together with such other and further relief as to this Court seems just and proper Dated: Brooklyn, New York June 9, 2015 Harlan Wittenstein =[9=