Motion for Summary Judgment in Alberto Collado v. Ermogeno Peralta, Miguel A. Rodriguez-Acevedo| Trellis.Law

On February 25, 2014 a Motion-Secondary was filed involving a dispute between Alberto Collado, and Ermogeno Peralta, Miguel A. Rodriguez-Acevedo, for Tort in the District Court of New York County.

Preview
FILED: NEW YORK COUNTY CLERK 07/17/2015 12:17 PM INDEX NO. 151648/2014
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 07/17/2015

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------~-----------------------------------------)( INDE)( NO.: 151648/14
ALBERTO COLLADO,

Plaintiff,
AFFIRMATION
- against - IN OPPOSITION

ERMOGENO ERAL TA and MIGUEL A.
RODRIGUEZ-ACEV ADO,

Defendants. FILE NO.: 655498
----------------------------------------------------------------------)( CASE ID: 72909

ANDREW G. MEIER, an attorney duly admitted to practice law before the Courts of the

State of New York, affirms the following to be true under the penalties of perjury pursuant to

CPLR S 2106:
1. I am associated with BAKER, McEVOY, MORRISSEY & MOSKOVITS, P.C.,

attorneys for the defendants, ERMOGENO ERALTA and MIGUEL A. RODRIGUEZ-

ACEV ADO, and as such am fully familiar with the facts and circumstances of this action as set

forth, based upon the contents of the filemaintained in this office.

2. I respectfully make this Affirmation, upon information and belief, in opposition to

plaintiffs Motion seeking an Order pursuant to CPLR S 3212 granting plaintiff summary

judgment against defendants on the issue of liability together with such other and further relief as

to this Court may seem just and proper

3. This action arises out of a motor vehicle accident that allegedly occurred on

November 2,2013 ..

DISCOVERY IS INCOMPLETE

4. c.P.L.R. S 3101(a) states: [t]here shall be full disclosure of all matter material and

necessary in the prosecution or defense of an action." Necessary and material has been liberally
construed by courts to embody the policy determination that ample discovery encourages a fair

and effective resolution of disputes. Spectrum Systems Intern. Corp. v. Chemical Bank, 78

N.Y.2d 371 (1991). Plaintiff's Motion should be denied as premature due to necessary and

material discovery remaining outstanding. The discovery process is in its infancy. Specifically,

depositions of all parties have yet to occur. Depositions of all party witnesses are an

indispensable method of discovery and disposition of a case prior to a thorough factfinding

process is antithetical to principles embodied in our jurisprudence system. Material and

necessary facts will be discovered during the depositions of party witness. Phoenix Life

Insurance Company v. Jacob P. Ilita,2014 WL 3928923 (2d Dept.).

5. A party should be permitted a reasonable opportunity for discovery prior to the

determination of a motion for summary judgment. See, Berchini v. Silverite Constr. Co., 289

AD2d 434; G.E. Capital v. Stephens, 248 AD2d 668; Drcan v. Cocarelli, 234 AD2d 537; Plaza

Invs. V. Kim, 208 AD2d 704. Granting a motion for summary judgment absent disclosure of

necessary and material information would frustrate the legislative intent of C.P.L.R. S 3101 (a).

Assuming arguendo this Court determines that plaintiff's Motion is not premature despite

outstanding discovery, there exist herein issues of fact and questions of fault which require the

denial of the instant motion.

A MOTION FOR SUMMARY JUDGMENT MUST BE
SUPPORTED BY ADMISSIBLE EVIDENCE

6. Plaintiff's reliance upon inadmissible evidence precludes a finding as a matter of

law against the defendants. The movant of a summary judgment motion must rely upon

admissible evidence in support of the papers and the admissible evidence must prove every facet

of the cause of action. Zuckerman v. City of New York, 404 N .E. 2d 718 (1980); People ex reI.

Spitzer v. Grasso, 858 N.Y.S.2d 23,32 (1st Dept. 2008); Balanca v. M. Foschi & Sons, Inc., 754
N.Y.S.2d 670, 671 (2d Dept. 2003); SRM Card Shop, Inc. v. 1740 Broadway Associates, L.P.,

769 N.Y.S.2d 483, 486 (1st Dept. 2003); Colonna and Co., Inc. v. Citibank, N.A., 447 N.Y.S.2d

10 (1st Dept. 1982); Greenberg v. ManIon Realty, Inc., 352 N.Y.S.2d 494 (2d Dept. 1974); Bua

v. South Shore Skating, Inc., 598 N.Y.S. 2d (2d. Dept., 1993); Spearmon v. Times Square Stores

~, 465 N.Y.S. 2d 230 (2d. Dept., 1983).

7. This Court should exclude the photographs annexed to plaintiff s Motion within

EXHIBIT C. The failure of plaintiff to lay a proper foundation mandates the exclusion of the

photographs submitted to the Court. Clancy v. Port of New York Authority, 389 N.Y.S.2d 615

(1st Dept., 1976). There is no testimony that "photograph 2" submitted in plaintiffs Motion is a

fair and accurate representation of the accident scene at the time of the accident. Moreover,

plaintiff testifies that '" [p]hoto 2' shows the location from the defendant's perspective." Plaintiff

is not qualified to testify about what mayor may not have been seen from defendant's

perspective. Additionally, this Court should disregard plaintiffs markings of the photographs

due to the absence defendant's deposition and available testimony to either rebut or corroborate

plaintiffs assertion. Plaintiff predicates the admissibility of the underlying photographs upon

the fact that plaintiff exchanged the photographs during discovery. Plaintiffs unilateral act of

exchange does not guarantee admissibility of evidence. As there has been no proper foundation

for the photographs, defendants oppose the admission of the photographs into evidence at this

juncture.
PLAINTIFF FAILS TO MEET THE REQUISITE BURDEN
FOR SUMMARY JUDGMENT

8. Summary judgment is a drastic remedy because it deprives the litigants of their

day in court and it should only be employed when there is no doubt as to the absence of a triable

issue of fact. Vega v. Restani Const. Corp., 965 N.E. 2d 240 (2012).

9. On a motion for summary judgment, the courts of this state engage in issue

finding and not issue determining. Resolving issues of fact is exclusively within the province of

the fact finder. Thus, where there appears to be a dispute as to an issue of material fact, summary

judgment is not granted and a plenary trial is ordered. Vega, supra.

10. Furthermore, movant has the burden to offer evidence sufficient to eliminate any

material issue of fact. Zuckerman v. City of New York, 404 N.E. 2d 718 (1980). Summary

judgment will be denied, even in the absence of opposing papers, where plaintiffs moving

affidavits fail to meet the stringent evidentiary burden placed upon movant. Zuckerman v. City

of New York, 404 N.E. 2d 718 (1980); Falk v. Goodman, 7 N.Y.2d 87, 91 (1959); Coley v.

Michelin Tire Corporation, 99 AD.2d 795, 472 N.Y.S.2d 125 (2nd Dept., 1984) ("the burden of

the movant to produce evidentiary facts is greater than on the opponent"); Cugini v. System

Lumber Co., Inc., 111 AD.2d 114, 489 N.Y.S.2d 492 (1st Dept., 1981); Ahl v. Martin, 82

AD.2d 938, 440 N.Y.S.2d 748 (3d Dept.,1981); Greenberg v. ManIon Realty, Inc., 43 AD.2d

968,352 N.Y.S.2d 494 (2nd Dept., 1974).

11. Negligence cases are not suitable for disposal on summary judgment; the Court of

Appeals elucidated such by stating:

[n]egligence cases by their very nature do not usually lend
themselves to summary judgment, since often, even if all parties
are in agreement as to the underlying facts, the very question of
negligence is itselfa question for jury determination.

Ugarriza v. Schmieder, 414 N.Y.2d 471 (1979). Concomitantly, summary judgment should

seldom be granted in automobile negligence cases. Pfaffenbach v. White Plains Express Corp.,

216 N.E.2d 324 (1966); Andre v. Pomeroy, 35 N.Y.2d 131 (1974); Ross v. Nelson, 344

N.Y.S.2d (Sup. Ct. Suffolk, 1973); Connell v. Buitkant, 17 AD.2d 944 (1st Dept., 1962);

Schneider v. Miecznikowski, 16 AD.2d 177 (4th Dept., 1962). Summary judgment should only

be invoked rarely, because very often there isa question of whether the defendant has exercised

due care under the circumstances and whether the accident was unavoidable in light of all the

surrounding circumstances. Ortiz v. Knighton, 14 AD.2d 679 (1st Dept., 1961); Morales v.

River, 14 A.D.2d 752 (1st Dept., 1961).

12. In automobile negligence actions, the question of fault is ordinarily a question of

fact to be determined by the jury. Foltis Inc. v. City of New York, 287 N.Y. 108; Salomone v.

Yellow Taxi Corp., 242 N.Y. 251. Foltis Inc. v. City of New York, 287 N.Y. 108 (1941);

Salomone v. Yellow Taxi Corp., 242 N.Y. 251 (1926); Scott v. Basdeo, 6 Misc. 3d 1020(A)

(N.Y. City Civ. Ct., 2004); Costalas v. City of New York, 532 N.Y.S. 2d 868 (1st Dept., 1988).

Furthermore, the question of the credibility of the parties involved is in the exclusive domain of

the jury. Sorokon v. Food Fair Stores, 51 AD.2d 592; Petrofsky v. Drucks, 16 AD.2d 690. It is

beyond the judicial ken and exclusively in the province of the fact finder to determine the

veracity of testimony. See Asabor v. Archdiocese of New York, 961 N.Y.S. 2d 17 (1st Dept.,

2013).

13. On the rare occasion that summary judgment is appropriate in an automobile

negligence case, the moving party has the burden of establishing not only the absence of
comparative fault but that the opposing party's negligent conduct was the sole proximate cause

of the injuries sustained. Freeman v. Tawil, 2014 WL 2958280 (2d Dept., 2014); Lu Yuan Yang

v. Howsal Cab Corp., 966 N.Y.S. 2d 167 (2d Dept., 2013).

14. Pursuant to VTL S 1234(a):

Riding on roadways, shoulders, bicycle or in-line skate lanes and
bicycle or in-line skate paths. (a) Upon all roadways, any bicycle
or in-line skate shall be driven either on a usable bicycle or in-line
skate lane or, if a usable bicycle or in-line skate lane has not been
provided, near the right-hand curb or edge of the roadway or upon
a usable right-hand shoulder in such a manner as to prevent undue
interference with the flow of traffic except when preparing for a
left turn or when reasonably necessary to avoid conditions that
would make it unsafe to continue along near the right-hand curb or
edge. Conditions to be taken into consideration include, but are not
limited to, fixed or moving objects, vehicles, bicycles, in-line
skates, pedestrians, animals, surface hazards or traffic lanes too
narrow for a bicycle or person on in-line skates and a vehicle to
travel safely side-by-side within the lane.

PLAINTIFF FAILS TO MEET THE REQUISITE
BURDEN TO BE ENTITLED TO SUMMARY JUDGMENT

15. To be entitled to summary judgment plaintiff must establish that his actions,

viewed in the light most favorable to the nonmoving party, cannot constitute comparative

negligence. As discussed infra., plaintiffs actions were violative of VTL S 1234(a). Therefore,

the inability to conclusively establish the absence of comparative negligence precludes this Court

from granting plaintiffs application. See supra., Freeman & Lu Yuan Yang. The facts viewed

in the light most favorable to the non-moving party establish Mr. Collado failed to operate his

bicycle in the designated bicycle lane. Please find annexed hereto as EXHIBIT A a copy of Mr.

Peralta's affidavit detailing the occurrence of the underlying accident. Moreover, Mr. Peralta

testified that a van traveling on the thoroughfare obstructed his view of Mr. Collado. Thus,
inferentially, Mr. Collado did not maintain a reasonable distance between himself and the van

traveling through the intersection. Viewing the facts in the light most favorable to the non-

moving party it is clear that Mr. Collado failed to operate his bicycle in accordance with the

applicable statutes and an appropriate standard of care.

A MATERIAL QUESTION OF FACT EXISTS WHETHER
PLAINTIFF ACTED AS A REASONABLE PRUDENT
PERSON UNDER LIKE CIRCUMSTANCES

16. Even if the Court fails to view the facts in the light most favorable to the non-

moving party, then there exist material question of facts sufficient to preclude a finding of

summary judgment in favor of the plaintiff. Mr. Callado stated in his affidavit: "(t]here were no

cars traveling in front of me." Plaintiffs EXHIBIT C, ~ 17. Mr. Callado's assertion is in stark

contrast to the assertion of Mr. Peralta, constituting a material question of fact sufficient to

preclude a finding of summary judgment. Additionally, Mr. Callado stated that he was operating

his bicycle in the designated bicycle lane. Plaintiffs EXHIBIT C, ~ 5. Again, Mr. Callado's

testimony on a material question of fact is the antithesis of Mr. Peralta's testimony. Such a

factual schism, on a material question of fact, mandates denial of plaintiffs application for

summary judgment. Mr. Callado admittedly failed to keep a proper look out and failed to act as

a reasonably prudent person as he entered the intersection without observing the other vehicles in

the intersection. Moreover, Mr. Callado's testimony is predicated upon presuppositions and

conclusions), both of which are insufficient to warrant a finding that there are no material

questions of fact.

JSee, Plaintiffs EXHIBIT C, ~~22 & 28.
17. Patently, the aforementioned renders summary judgment wholly inappropriate.

Accordingly, defendants respectfully request that this Court deny the instant Motion for

summary judgment.

WHEREFORE, for all the reasons aforesaid, defendants respectfully request that this

Court issue an Order denying plaintiff s Motion and granting such other and further relief as to

this Court may seem just and proper.

Dated: Brooklyn, New York
July 17,2015
Yours, etc.,
BAKE cEVOY, MORRISSEY
& VITS, P.C.

AND G. EIER, ESQ.
Attorneys for Defendant
One Metrotech Center
Brooklyn, New York 11201
(212) 857-8230

To: TARASOV & ASSOCIATES, P.C.
Attorneys for Plaintiff
2566 86th Street
Brooklyn, New York 11214
(718) 265-0022
AFFIRMATION OF SERVICE BY MAIL

STATE OF NEW YORK )
) : SS :
COUNTY OF KINGS )

I, ANDREW G. MEIER, an attorney duly admitted to practice law before the Courts of
the State of New York, affirms the following, upon information and belief, to be true to under the
penalties of perjury pursuant to CPLR 9 2106:
That I am not a party to this action, am over 18 years of age, and reside in Orange
County, New York.

That on July 17,2015, I served the within AFFIRMATION IN OPPOSITION upon the
attorneys listed below, at their listed addresses which were so designated by said attorneys for
said purpose, by depositing a true copy of same enclosed in a postpaid properly addressed
wrapper in a post office under the exclusive care and custody of the U.S. Postal Service within
the State of New York.

TO: TARASOV & ASSOCIATES, P.c.
2566 86th Street
Brooklyn, New York 11214
Index No.: 151648/14

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

ALBERTO COLLADO,

PLAINTIFF,

-against-

ERMOGENO ERALTA and MIGUEL A.
RODRIGUEZ-ACEV ADO,

DEFENDANTS.

AFFIRMATION IN OPPOSITION

BAKER, McEVOY, MORRISSEY & MOSKOVITS, P.C.
One Metrotech Center
Brooklyn, New York, 11201
(212) 857-8230

To:

Attorney(s) for:

Service of a copy of the within

is hereby admitted.
Dated,

Attorney(s) for

Case Info

Judge

Paul Goetz Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

July 17, 2015

Case Filing Date

February 25, 2014

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: Alberto Collado v. Ermogeno Peralta, Miguel A. Rodriguez-Acevedo

Preview

Case Info

Parties