Preview
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 05/16/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
a ee xX INDEX NO.: 151648/2014
ALBERTO COLLADO,
Plaintiff,
AFFIRMATION
- against - IN OPPOSITION
EMOGENO PERALTA and MIGUEL A.
RODRIGUEZ-ACEVEDO,
FILE NO. 655498
Defendants. CA! 4 ID NO. 72909
--X
SIMON P. WERCBERGER, 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 §
2106:
I am associated with BAKER, McEVOY, MORRISSEY & MOSKOVITS, P.C., attorneys for the
defendants, and as such am fully familiar with the facts and circumstances of this action as set forth,
based upon the contents of the file maintained in this office.
I respectfully make this Affirmation, upon information and belief, in opposition to the plaintiff's Motion,
seeking an Order pursuant to CPLR § 2221 for leave to renew their Motion for Summary Judgment on
liability.
This action arises out ofa motor vehicle accident that allegedly occurred on November 2, 2013, on
Avenue C at or near its intersection with East 6" Street, in the County, City and State of New York. The
plaintiff moved for summary judgment on liability, and the defendants opposed. This Court denied the
plaintiff's summary judgment Motion in a Decision and Order dated September 25, 2015, annexed hereto
as EXHIBIT “A”. The plaintiff now moves for leave to renew, arguing that the affidavit of the defendant
PERALTA submitted by the defendants in opposition was subject to a procedural defect, to the extent that
it was not accompanied by an affidavit from the person who translated the English affidavit into the
defendant’s native Spanish before the defendant signed.
lof 4
On a motion to renew, a party must show new facts to support the motion, as well as a justifiable excuse
for not initially placing such facts before the Court. See CPLR § 2221 (e). A motion to renew on new
facts is flexible, granting the Court discretion, however, it must offer a sufficient excuse as to why such
was not submitted in the original papers. Shine v. Roosevelt Hospital, 26 A.D.3d 204 (1 Dep’t 2006).
Moreover, the Courts have held that a motion to renew “is not a second chance freely given to parties who
have not exercised due diligence in making their first factual presentation”. (Citations omitted) See
Renna v. Gullo, 19 A.D.3d 472 (2d Dep’t 2005). Not only does there need to be a reasonable
justification, “[I]eave to renew is not warranted where the factual material adduced in connection with the
subsequent motion is merely cumulative with respect to the factual material submitted in connection with
the original motion.” (Citations omitted) See In the Matter of Orange And Rockland Utilities, Inc. v.
Assessor of the Town of Haverstraw, 304 A.D.2d 668 (2d Dep’t 2003). (In that case, the party seeking
leave to renew “submitted the same evidence on its prior motion together with additional affidavits
purporting to explain the significance of the evidence.” The Court held the “significance of this
information was not new information, but rather, it was merely cumulative evidence which could not
form the basis ofa renewal motion.”)
In this case, the plaintiffs “new fact” being presented is the absence of the translator’s affidavit in the
original opposition papers. The plaintiff does not argue that the translator was not proficient in both
Spanish and English and qualified to translate the affidavit to the defendant, nor is it argued that the
document was not properly translated to the defendant before signing it in his own hand. In fact, at the
deposition of the defendant, cited by the plaintiff in his instant Motion herein, the defendant testified that
the affidavit was translated to him in Spanish, and he then signed it (see, Collado EBT, annexed hereto as
EXHIBIT “B”):
P.13, (20: A: Someone wrote this and read it for me in Spanish, told me to sign it...
P. 14, 48: Q: Did somebody translate this to you by speaking to you? A: That is what I think happened.
2 0f 4
The plaintiff also cannot argue that the actual defense presented by the defendant in the said affirmation —
that the plaintiff was riding his bicycle outside of the designated bike lane - is inaccurate and must be
reargued, as the defendant testified to the same at his deposition:
P.28, (7: Q: Was the bicycle inside the bike lane or outside of the bike lane at the time of the contact? A:
Maybe a little bit more outside.
P.30, 5: A: It was outside of this here. (indicating). Ms. Drum: Indicating outside of the bike lane.
In summation then, the plaintiff's “new facts” set forth nothing new to support the plaintiff's position on
the merits, but is a clear attempt at a “second bite at the apple” using a mere formality in the opposition
papers to the original Motion. The affidavit of the defendant was done at the office of PM Investigations,
a private investigation firm retained by defense counsel. Our office was not aware at the time that the
affidavit was done with the aid of an interpreter. We were made aware of this by instant Motion to
Reargue, and promptly obtained the necessary affidavit from Mr. Luis A. Aquino, the translator used by
PM Investigations. Mr. Aquino’s executed affidavit is annexed hereto as EXHIBIT “C”. In light of
the foregoing, there remains no “new facts” with which to renew this Court’s prior Order, and the
plaintiff's Motion must be denied.
Moreover, it should be noted that Justice Bluth’s September 25 Decision does not indicate that it is being
made purely on the basis of the defendant’s affidavit. The plaintiffs contention that the decision supports
an inference that a prima facie case was made is based on speculation and conjecture (see, Plaintiff's
Affirmation in Support, §10-12). In the event that the plaintiff failed to set out a prima facie case for
summary judgment, the current issue concerning the affidavit is moot.
10. Furthermore, the plaintiffs original Motion was blatantly premature, insofar as the defendant had not
been deposed at that point. To the plaintiffs argument that “mere hope” that depositions will unearth a
question of fact cannot defeat a Motion for Summary Judgment, in this case, the affidavit with a
procedural defect was, at the very least, sufficient to provide a basis that a deposition was necessary to
3 0f 4
discover whether or not a question of fact existed, which, in fact it did. As such, even had this Court held
that the defendant’s affidavit was inadmissible for lack of a translator’s affidavit, the plaintiff's origina
Motion would have still been denied as premature.
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED
11 In the alternative, should this Court grant plaintiffs motion for leave to renew, defendants respectfully
request this Court deny plaintiff's motion for summary judgment. As set forth above, this case comprises
a clear question of fact as to whether the plaintiff was in the bike lane. This is supported by both the
affidavit of the defendant and his deposition. This is a clear question of fact that cannot be determined
summarily as a matter of law.
WHEREFORE, for all the reasons aforesaid, defendants respectfully request that this Court
issue an Order plaintiffs Motion in its entirety and granting such other and further relief as to this Court
may seem just and proper.
Dated: Brooklyn, New York
May 16, 2016
Yours, etc.,
BAKER, McEVOY, MORRISSEY
& MOSKOVITS, P.C.
anton oo
Attorneys for Defendants
ERMOGENO PERALTA and
MIGUEL A. RODRIGUEZ-ACEVEDO
1 Metrotech Center, 8'"* Floor
Brooklyn, New York 11201
(212) 857-8230
To: Law Offices of Tarasov & Associates
Attorney for Plaintiff
ALBERTO COLLADO
2566 86" Street
Brooklyn, New York 11214
(718) 368-0690
4o0f 4
Preview
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 05/16/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK a ee xX INDEX NO.: 151648/2014 ALBERTO COLLADO, Plaintiff, AFFIRMATION - against - IN OPPOSITION EMOGENO PERALTA and MIGUEL A. RODRIGUEZ-ACEVEDO, FILE NO. 655498 Defendants. CA! 4 ID NO. 72909 --X SIMON P. WERCBERGER, 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 § 2106: I am associated with BAKER, McEVOY, MORRISSEY & MOSKOVITS, P.C., attorneys for the defendants, and as such am fully familiar with the facts and circumstances of this action as set forth, based upon the contents of the file maintained in this office. I respectfully make this Affirmation, upon information and belief, in opposition to the plaintiff's Motion, seeking an Order pursuant to CPLR § 2221 for leave to renew their Motion for Summary Judgment on liability. This action arises out ofa motor vehicle accident that allegedly occurred on November 2, 2013, on Avenue C at or near its intersection with East 6" Street, in the County, City and State of New York. The plaintiff moved for summary judgment on liability, and the defendants opposed. This Court denied the plaintiff's summary judgment Motion in a Decision and Order dated September 25, 2015, annexed hereto as EXHIBIT “A”. The plaintiff now moves for leave to renew, arguing that the affidavit of the defendant PERALTA submitted by the defendants in opposition was subject to a procedural defect, to the extent that it was not accompanied by an affidavit from the person who translated the English affidavit into the defendant’s native Spanish before the defendant signed. lof 4 On a motion to renew, a party must show new facts to support the motion, as well as a justifiable excuse for not initially placing such facts before the Court. See CPLR § 2221 (e). A motion to renew on new facts is flexible, granting the Court discretion, however, it must offer a sufficient excuse as to why such was not submitted in the original papers. Shine v. Roosevelt Hospital, 26 A.D.3d 204 (1 Dep’t 2006). Moreover, the Courts have held that a motion to renew “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation”. (Citations omitted) See Renna v. Gullo, 19 A.D.3d 472 (2d Dep’t 2005). Not only does there need to be a reasonable justification, “[I]eave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion.” (Citations omitted) See In the Matter of Orange And Rockland Utilities, Inc. v. Assessor of the Town of Haverstraw, 304 A.D.2d 668 (2d Dep’t 2003). (In that case, the party seeking leave to renew “submitted the same evidence on its prior motion together with additional affidavits purporting to explain the significance of the evidence.” The Court held the “significance of this information was not new information, but rather, it was merely cumulative evidence which could not form the basis ofa renewal motion.”) In this case, the plaintiffs “new fact” being presented is the absence of the translator’s affidavit in the original opposition papers. The plaintiff does not argue that the translator was not proficient in both Spanish and English and qualified to translate the affidavit to the defendant, nor is it argued that the document was not properly translated to the defendant before signing it in his own hand. In fact, at the deposition of the defendant, cited by the plaintiff in his instant Motion herein, the defendant testified that the affidavit was translated to him in Spanish, and he then signed it (see, Collado EBT, annexed hereto as EXHIBIT “B”): P.13, (20: A: Someone wrote this and read it for me in Spanish, told me to sign it... P. 14, 48: Q: Did somebody translate this to you by speaking to you? A: That is what I think happened. 2 0f 4 The plaintiff also cannot argue that the actual defense presented by the defendant in the said affirmation — that the plaintiff was riding his bicycle outside of the designated bike lane - is inaccurate and must be reargued, as the defendant testified to the same at his deposition: P.28, (7: Q: Was the bicycle inside the bike lane or outside of the bike lane at the time of the contact? A: Maybe a little bit more outside. P.30, 5: A: It was outside of this here. (indicating). Ms. Drum: Indicating outside of the bike lane. In summation then, the plaintiff's “new facts” set forth nothing new to support the plaintiff's position on the merits, but is a clear attempt at a “second bite at the apple” using a mere formality in the opposition papers to the original Motion. The affidavit of the defendant was done at the office of PM Investigations, a private investigation firm retained by defense counsel. Our office was not aware at the time that the affidavit was done with the aid of an interpreter. We were made aware of this by instant Motion to Reargue, and promptly obtained the necessary affidavit from Mr. Luis A. Aquino, the translator used by PM Investigations. Mr. Aquino’s executed affidavit is annexed hereto as EXHIBIT “C”. In light of the foregoing, there remains no “new facts” with which to renew this Court’s prior Order, and the plaintiff's Motion must be denied. Moreover, it should be noted that Justice Bluth’s September 25 Decision does not indicate that it is being made purely on the basis of the defendant’s affidavit. The plaintiffs contention that the decision supports an inference that a prima facie case was made is based on speculation and conjecture (see, Plaintiff's Affirmation in Support, §10-12). In the event that the plaintiff failed to set out a prima facie case for summary judgment, the current issue concerning the affidavit is moot. 10. Furthermore, the plaintiffs original Motion was blatantly premature, insofar as the defendant had not been deposed at that point. To the plaintiffs argument that “mere hope” that depositions will unearth a question of fact cannot defeat a Motion for Summary Judgment, in this case, the affidavit with a procedural defect was, at the very least, sufficient to provide a basis that a deposition was necessary to 3 0f 4 discover whether or not a question of fact existed, which, in fact it did. As such, even had this Court held that the defendant’s affidavit was inadmissible for lack of a translator’s affidavit, the plaintiff's origina Motion would have still been denied as premature. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED 11 In the alternative, should this Court grant plaintiffs motion for leave to renew, defendants respectfully request this Court deny plaintiff's motion for summary judgment. As set forth above, this case comprises a clear question of fact as to whether the plaintiff was in the bike lane. This is supported by both the affidavit of the defendant and his deposition. This is a clear question of fact that cannot be determined summarily as a matter of law. WHEREFORE, for all the reasons aforesaid, defendants respectfully request that this Court issue an Order plaintiffs Motion in its entirety and granting such other and further relief as to this Court may seem just and proper. Dated: Brooklyn, New York May 16, 2016 Yours, etc., BAKER, McEVOY, MORRISSEY & MOSKOVITS, P.C. anton oo Attorneys for Defendants ERMOGENO PERALTA and MIGUEL A. RODRIGUEZ-ACEVEDO 1 Metrotech Center, 8'"* Floor Brooklyn, New York 11201 (212) 857-8230 To: Law Offices of Tarasov & Associates Attorney for Plaintiff ALBERTO COLLADO 2566 86" Street Brooklyn, New York 11214 (718) 368-0690 4o0f 4