Preview
FILED: BRONX COUNTY CLERK 06/06/2018 07:33 PM INDEX NO. 23898/2018E
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/06/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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ANGEL DEJESUS, Index No. 23898/2018E
Plaintiff,
AFFIRMATION IN SUPPORT
-against- OF MOTION TO DISMISS
THOMAS CICALESE and MAYRICH
CONSTRUCTION CORP.,
Defendants.
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JOSEPH E. HOPKINS, an attorney duly admitted to practice law in the Courts of the State
of New York, hereby affirms the following under the penalties of perjury:
O'
1. I am an associate with the firm of O'TOOLE SCRIVO FERNANDEZ WEINER
VAN LIEU LLC, attorneys for defendants THOMAS CICALESE and MAYRICH
"Defendants"
CONSTRUCTION CORP. (hereinafter "Defendants"), and as such, I am fully familiar with allthe
facts and circumstances herein. This affirmation is based upon my knowledge of the material facts
and prior proceedings in the above action, the attached exhibits, and upon a review of the file
maintained by this office for this action.
Defendants'
2. I submit this Affirmation in support of Motion for an Order pursuant
to CPLR 3211, dismissing Plaintiff's Complaint in its entirety, and for such other and further relief
as this Court deems just and proper.
"Plaintiff"
3. On or about April 4, 2018, Plaintiff ANGEL DEJESUS (hereinafter "Plaintiff")
filed his Summons and Verified Complaint in this action, which is annexed hereto as Exhibit A.
4. On or about May 7, 2018, Plaintiff and Defendants executed a Stipulation
Extending Time To File Responsive Pleading, extending Defendant's time to appear and to
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answer, amend, or supplement the answer as of course, or to make any motion with relation to the
Summons or Complaint in this action, until June 6, 2018, which is annexed hereto as Exhibit B.
5. According to Plaintiff's Verified Complaint, Plaintiff alleges that on or about
Defendants'
January 25, 2018, vehicle, bearing license plate number 84772PA issued by the State
of New York, came into contact with Plaintiff's vehicle, bearing license plate number 77940JW
issued by the State of New York, around "the roadway known as Dupont Street at or near its
Avenue," "Accident"
intersection with Oak Point causing Plaintiff to be injured. (hereinafter, the "Accident").
6. However, documentary evidence establishes that Plaintiff caused the Accident and
Defendants were in no way negligent.
7. Following the Accident, a Police Accident Report was issued by Police Officer
Roosevelt O. Orellana, a true copy of which is annexed hereto as Exhibit C. The Police Accident
Report identifies Plaintiff's vehicle as a Ford SW/SUV owned by Rolling Frito Lay Sales LP.
Defendants'
The Police Accident Report identifies vehicle as a 2007 Peterbuilt truck.
8. The Police Accident report states that Plaintiff's vehicle was bearing license plate
Defendants'
number 77940JW issued by the State of New York and vehicle was bearing license
plate number 84772PA issued by the State of New York. These are the exact same vehicles
described in the Complaint.
9. The Police Accident Report contains the following description of the Accident:
"[Plaintiffj states that he was pulling out of the parking lot to merge with southbound Dupont
Avenue traffic when he went to close the rear compartment door and momentarily lost sight of the
[Defendants'
road and collided with vehicle]. [Defendant Cicalese] stated that he was driving
struck."
straight when he suddenly felthis vehicle had been
10. Photographs taken contemporaneously with the accident show that the &ont of
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Defendants'
Plaintiff's vehicle (with the Frito Lays logo displayed) struck the rear of vehicle. True
copies of these photographs are annexed as Exhibit D.
11. "Dismissal of a complaint pursuant to CPLR 3211(a)(1) is warranted where the
documentary evidence submitted conclusively establishes a defense to the asserted claims as a
law."
matter of 150 Broadway N.Y. Assocs., L.P. v. Bodner, 784 N.Y.S.2d 63, 65 (App. Div.
2004).
12. Furthermore, under New York law, "a driver of a vehicle approaching another
vehicle from the rear is required to maintain a reasonably safe rate of speed and control over his
vehicle."
or her vehicle and to exercise reasonable care to avoid colliding with the other Vavoulis
v. Adler, 842 N.Y.S.2d 526, 527 (App. Div. 2007); Vehicle and Traffic Law § 1129 [al. "The
operator of the moving vehicle is required to rebut the inference of negligence created by an
unexplained rear-end collision, because he is in the best position to explain whether the collision
cause."
was due to a reasonable, non-negligent Leonard v. City of N.Y., N.Y.S.2d 467, 468 (App.
Div. 2000).
13. In addition, under § 1143 of the New York Vehicle & Traffic Law, "the driver of a
vehicle about to enter or cross a roadway from any place other than another roadway shall yield
crossed."
the right of way to allvehicles approaching on the roadway to be entered or
14. Based on the Police Accident Report and contemporaneous photographs, there can
be no dispute that Plaintiff caused the Accident and Defendants did not.
15. According to the Police Accident Report, Plaintiff pulled out into a public roadway
from a parking lot.
16. The Police Accident Report confirms that Defendant Cicalese was already traveling
on the public roadway when Plaintiff pulled out from the parking lot.
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17. Plaintiff was not paying attention to his surroundings when he pulled out into the
public roadway, to the extent that he went to close the rear compartment door and lost sight of the
road when he collided with Defendant, as evidenced by the Police Accident Report
18. Defendant Cicalese was traveling straight when stricken by Plaintiff's vehicle.
19. There is no indication from the Police Accident Report that Defendants were in any
way a proximate cause of the accident. No apparent contributing factors were assigned to
Defendant Cicalese.
20. In this instance, it isundisputed that Plaintiff rear-ended Defendant Cicalese. The
passengers'
photographs show that Plaintiff struck Defendant Cicalese on the rear side.
Furthermore, Plaintiff admits that he was distracted at the time of the accident in the Police
Accident Report It isobvious that Plaintiff was distracted as he failed to observe a truck that was
long"
listed as "more than 34 feet in the Police Accident Report.
21. Moreover, the Police Accident Report states that Plaintiff's failure to yield was a
contributing cause of the accident. Plaintiff cannot possibly claim a reasonable, non-negligent
cause for his conduct when he clearly violated § 1143 of the New York Vehicle & Traffic Law.
22. Therefore, based on the photographs and Police Accident Report, Plaintiff cannot
overcome the rebuttable inference of negligence and the matter should be dismissed on the grounds
of documentary evidence.
I
I
1
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WHEREFORE, it is respectfully requested that the instant motion be granted in its
entirety and that this Court make and enter for an Order pursuant to CPLR 3211, dismissing
Plaintiff's Complaint in itsentirety, and for such other and further relief as this Court deems just
and proper.
Dated: Cedar Grove, New Jersey
June 6, 2018
'
(7,
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NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/06/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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ANGEL DEJESUS, Index No. 23898/2018E
Plaintiff,
-against-
THOMAS CICALESE and MAYRICH
CONSTRUCTION CORP.,
Defendants.
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MOTION TO DISMISS IN LIEU OF ANSWER
O'
O'TOOLE SCRIVO FERNANDEz WEINER VAN LIEU, LLC
Attorneys for defendants Thomas Cicalese and Mayrich Construction Corp.
14 Village Park Road
Cedar Grove, New Jersey 07009
(973) 239-5700
6 of 6
Preview
FILED: BRONX COUNTY CLERK 06/06/2018 07:33 PM INDEX NO. 23898/2018E NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/06/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X ----------------------------------------------------------------X ANGEL DEJESUS, Index No. 23898/2018E Plaintiff, AFFIRMATION IN SUPPORT -against- OF MOTION TO DISMISS THOMAS CICALESE and MAYRICH CONSTRUCTION CORP., Defendants. ———————————X ----------------------------------------------------------------X JOSEPH E. HOPKINS, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following under the penalties of perjury: O' 1. I am an associate with the firm of O'TOOLE SCRIVO FERNANDEZ WEINER VAN LIEU LLC, attorneys for defendants THOMAS CICALESE and MAYRICH "Defendants" CONSTRUCTION CORP. (hereinafter "Defendants"), and as such, I am fully familiar with allthe facts and circumstances herein. This affirmation is based upon my knowledge of the material facts and prior proceedings in the above action, the attached exhibits, and upon a review of the file maintained by this office for this action. Defendants' 2. I submit this Affirmation in support of Motion for an Order pursuant to CPLR 3211, dismissing Plaintiff's Complaint in its entirety, and for such other and further relief as this Court deems just and proper. "Plaintiff" 3. On or about April 4, 2018, Plaintiff ANGEL DEJESUS (hereinafter "Plaintiff") filed his Summons and Verified Complaint in this action, which is annexed hereto as Exhibit A. 4. On or about May 7, 2018, Plaintiff and Defendants executed a Stipulation Extending Time To File Responsive Pleading, extending Defendant's time to appear and to 1 of 6 FILED: BRONX COUNTY CLERK 06/06/2018 07:33 PM INDEX NO. 23898/2018E NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/06/2018 answer, amend, or supplement the answer as of course, or to make any motion with relation to the Summons or Complaint in this action, until June 6, 2018, which is annexed hereto as Exhibit B. 5. According to Plaintiff's Verified Complaint, Plaintiff alleges that on or about Defendants' January 25, 2018, vehicle, bearing license plate number 84772PA issued by the State of New York, came into contact with Plaintiff's vehicle, bearing license plate number 77940JW issued by the State of New York, around "the roadway known as Dupont Street at or near its Avenue," "Accident" intersection with Oak Point causing Plaintiff to be injured. (hereinafter, the "Accident"). 6. However, documentary evidence establishes that Plaintiff caused the Accident and Defendants were in no way negligent. 7. Following the Accident, a Police Accident Report was issued by Police Officer Roosevelt O. Orellana, a true copy of which is annexed hereto as Exhibit C. The Police Accident Report identifies Plaintiff's vehicle as a Ford SW/SUV owned by Rolling Frito Lay Sales LP. Defendants' The Police Accident Report identifies vehicle as a 2007 Peterbuilt truck. 8. The Police Accident report states that Plaintiff's vehicle was bearing license plate Defendants' number 77940JW issued by the State of New York and vehicle was bearing license plate number 84772PA issued by the State of New York. These are the exact same vehicles described in the Complaint. 9. The Police Accident Report contains the following description of the Accident: "[Plaintiffj states that he was pulling out of the parking lot to merge with southbound Dupont Avenue traffic when he went to close the rear compartment door and momentarily lost sight of the [Defendants' road and collided with vehicle]. [Defendant Cicalese] stated that he was driving struck." straight when he suddenly felthis vehicle had been 10. Photographs taken contemporaneously with the accident show that the &ont of 2 of 6 FILED: BRONX COUNTY CLERK 06/06/2018 07:33 PM INDEX NO. 23898/2018E NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/06/2018 Defendants' Plaintiff's vehicle (with the Frito Lays logo displayed) struck the rear of vehicle. True copies of these photographs are annexed as Exhibit D. 11. "Dismissal of a complaint pursuant to CPLR 3211(a)(1) is warranted where the documentary evidence submitted conclusively establishes a defense to the asserted claims as a law." matter of 150 Broadway N.Y. Assocs., L.P. v. Bodner, 784 N.Y.S.2d 63, 65 (App. Div. 2004). 12. Furthermore, under New York law, "a driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe rate of speed and control over his vehicle." or her vehicle and to exercise reasonable care to avoid colliding with the other Vavoulis v. Adler, 842 N.Y.S.2d 526, 527 (App. Div. 2007); Vehicle and Traffic Law § 1129 [al. "The operator of the moving vehicle is required to rebut the inference of negligence created by an unexplained rear-end collision, because he is in the best position to explain whether the collision cause." was due to a reasonable, non-negligent Leonard v. City of N.Y., N.Y.S.2d 467, 468 (App. Div. 2000). 13. In addition, under § 1143 of the New York Vehicle & Traffic Law, "the driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield crossed." the right of way to allvehicles approaching on the roadway to be entered or 14. Based on the Police Accident Report and contemporaneous photographs, there can be no dispute that Plaintiff caused the Accident and Defendants did not. 15. According to the Police Accident Report, Plaintiff pulled out into a public roadway from a parking lot. 16. The Police Accident Report confirms that Defendant Cicalese was already traveling on the public roadway when Plaintiff pulled out from the parking lot. 3 of 6 FILED: BRONX COUNTY CLERK 06/06/2018 07:33 PM INDEX NO. 23898/2018E NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/06/2018 17. Plaintiff was not paying attention to his surroundings when he pulled out into the public roadway, to the extent that he went to close the rear compartment door and lost sight of the road when he collided with Defendant, as evidenced by the Police Accident Report 18. Defendant Cicalese was traveling straight when stricken by Plaintiff's vehicle. 19. There is no indication from the Police Accident Report that Defendants were in any way a proximate cause of the accident. No apparent contributing factors were assigned to Defendant Cicalese. 20. In this instance, it isundisputed that Plaintiff rear-ended Defendant Cicalese. The passengers' photographs show that Plaintiff struck Defendant Cicalese on the rear side. Furthermore, Plaintiff admits that he was distracted at the time of the accident in the Police Accident Report It isobvious that Plaintiff was distracted as he failed to observe a truck that was long" listed as "more than 34 feet in the Police Accident Report. 21. Moreover, the Police Accident Report states that Plaintiff's failure to yield was a contributing cause of the accident. Plaintiff cannot possibly claim a reasonable, non-negligent cause for his conduct when he clearly violated § 1143 of the New York Vehicle & Traffic Law. 22. Therefore, based on the photographs and Police Accident Report, Plaintiff cannot overcome the rebuttable inference of negligence and the matter should be dismissed on the grounds of documentary evidence. I I 1 4 of 6 FILED: BRONX COUNTY CLERK 06/06/2018 07:33 PM INDEX NO. 23898/2018E NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/06/2018 WHEREFORE, it is respectfully requested that the instant motion be granted in its entirety and that this Court make and enter for an Order pursuant to CPLR 3211, dismissing Plaintiff's Complaint in itsentirety, and for such other and further relief as this Court deems just and proper. Dated: Cedar Grove, New Jersey June 6, 2018 ' (7, 5 of 6 FILED: BRONX COUNTY CLERK 06/06/2018 07:33 PM INDEX NO. 23898/2018E NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/06/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X ----------------------------------------------------------------X ANGEL DEJESUS, Index No. 23898/2018E Plaintiff, -against- THOMAS CICALESE and MAYRICH CONSTRUCTION CORP., Defendants. X ----------------------------------------------------------------X MOTION TO DISMISS IN LIEU OF ANSWER O' O'TOOLE SCRIVO FERNANDEz WEINER VAN LIEU, LLC Attorneys for defendants Thomas Cicalese and Mayrich Construction Corp. 14 Village Park Road Cedar Grove, New Jersey 07009 (973) 239-5700 6 of 6