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FILED: KINGS COUNTY CLERK 08/16/2018 07:44 PM INDEX NO. 520675/2017
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 08/16/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------X
OGUNWALE ELEBUTE, Index #: 520675/2017
Plaintiff(s), AFFIRMATION IN SUPPORT
-against-
NORTHWELL HEALTH, INC., NORTHSHORE
UNIVERSITY HOSPITAL and .IOHNNY RAY MARQUEZ,
Defendants.
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IRA B. GORDON, ESQ., an attorney duly admitted to practice before the courts of the State
of New York, affirms the following under the penalties of perjury pursuant to the applicable
provisions of the CPLR:
1. I am an associate in the law firm of WESER & WESER, P.C., attorneys for the plaintiff
herein, and as such, I am fullyfamiliar with allof the facts and circumstances herein.
2. I submit this affirmation in support of the instant motion for an Order:
A. Pursuant to CPLR § 3212, granting summary judgment in favor of the plaintiff and against
defendants on the issue of liability;
B. Dismissing the following affirmative defenses raised in the Answer of defendants
NORTHWELL HEALTH, INC., NORTHSHORE UNIVERSITY HOSPlTAL and JOHNNY RAY
MARQUEZ, to plaintiff's complaint:
• the Fj1RST affirmative defense alleging culpable conduct of the plaintiff because of
the plaintiff's negligence or assumption of risk;
• the THIRD affirmative defense alleging negligence or other culpable conduct of
third parties over which defendant had not control or right to exercise control;
• the FOURTH affirmative defense alleging limitation of liability pursuant to Article
16 of the CPLR;
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• the FIFTH affirmative defense plaintiff is barred from under the
alleging recovery
doctrine of primary assumption of risk;
• the SIXTH affirmative defense the complaint fails to state a cause of action
alleging
upon which relief may be granted; and
• the NINTH affirmative defense one or more of the parties named as
alleging
defendants are improper;
C. Directing that discovery proceed on the issue of damages only;
D. Directing a trial on the issue of damages only; and
E. For such other and further relief as to the court may seem just and proper.
BACKGROUND AND PROCEDURAL HISTORY
3. This is an action to recover damages for severe personal injuries sustained by
plaintiff, the driver of a vehicle that was struck in the rear by a vehicle owned and operated by
defendants'
defendants. Defendant NORTHSHORE UNIVERSITY HOSPITAL is the owner of
subject vehicle. Defendant NORTHWELL HEALTH, INC. is the employer of defendant JOHNNY
defendants'
RAY MARQUEZ who was operating subject vehicle during and in the course of his
defendants'
emplayment. As a result of negligence in their ownership and operation of the
vehicle, during and in the course of defendant driver's employment, plaintiff was caused to
sustain serious personal injuries.
4. A of the Certified Police Accident Report with the NYSDMV cover page MV-
copy
A.1
104COV is annexed hereto as EXHIBIT According to the report, the plaintiff OGUNWALE
ELEBUTE was the driver of vehicle #1, defendant NORTHSHORE UNIVERSITY HOSPITAL was the
1 report
The policereport is redactedto omit dates ofbirthand motoristID numbers due to privacyconcerns. The police
is NOT needed to establishplaintiff's
prima facieentit!êmêñtto summary judgement asplaintiff
submits a sworn affidavit
in supportof thismotion (seebelow) and a sworn affidavitofa witness/passenger (see below) which establishesplaintiff's
prima facie case. The police reportis offeredon the motion, however, forthe record and toensure thatdefendants, in
opposition to thismotion, willbe unable to provide a non-negligent explanation forstriking vehicle
plaintiff's in therear,
and to ensure that defendants do not attempt to raisea feigned issueof factor to contradictthe police report.
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registered owner and defendant JOHNNY RAY MARQUEZ was the driver of vehicle #2, and the
accident took place on I 278 [Brooklyn Queens Expressway] westbound, County of Kings on
March 29, 2017. Also according to the report, the driver of vehicle #2 (defendant JOHNNY RAY
MARQUEZ) stated that "while traveling westbound on BQE at Degraw Street he rear ended
#1"
vehicle (Emphasis added).
5. On October 25, 2017, plaintiff filed a Summons and Verified Complaint (EXHIBIT
B) resulting from the subject accident. The complaint alleges ñêgligence on behalf of defendants
as the owners, lessors and operator of defendants subject vehicle involved in the subject
accident.
6. The defendants NORTHWELL HEALTH, INC., NORTHSHORE UNIVERSITY
HOSPITAL and JOHNNY RAY MARQUEZ joined issue by service of an Answer dated January 11,
2018 (EXHIBIT C). In their Answer, defendants raised the FIRST affirmative defense a||eging
culpable conduct of the plaintiff because of the plaintiff's neg|igence or assumption of risk;the
THIRD affirmative defense alleging negligence or other culpable conduct of third parties over
which defendant had not control or right to exercise control; the FOURTH affirmative defense
alleging limitation of liabilitypursuant to Article 16 of the CPLR; the FIFTH affirmative defense
alleging plaintiff is barred from recovery under the doctrine of primary assumption of risk; and
the SIXTH affirmative defense alleging the complaint fails to state a cause of action upon which
relief may be granted; and the NINTH affirmative defense alleging one or more of the parties
named as defendants are improper. Plaintiff now seeks to dismiss and strike these Affirmative
Defenses as there are no issues as to liability in this matter, there are no other parties that may
be liable for this accident and these affirmative defenses have no merit.
7. In order to eliminate the preliminary issues with respect to ownership of
defendants'
subject vehicle involved in the subject accident and the employment relationship
between the defendants on the date of the accident, plaintiff served a Notice to Admit upon
defendants.
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8. Plaintiff served a Notice To Admit dated May 21, 2018 (EXHIBIT D) upon
defendants and by Response To Notice To Admit dated May 24, 2018 (EXHIBIT E) defendants
admitted that defendant NORTHSHORE UNIVERSITY HOSPITAL was the registered owner of
defendants'
subject vehicle on the date of subject accident (Notice To Admit paragraph #s 9, 10,
11 and 12) and that defendant JOHNNY RAY MARQUEZ was employed by defendant NORTHWELL
HEALTH, INC. on the date of the subject accident (Notice To Admit paragraph # 31).
9. By Verified Billof Particulars (EXHIBIT F), plaintiff amplified the pleadings and
alleged that defendants were careless, reckless and negligent in the ownership, operation,
defendants'
management, maintenance and control of the subject vehicle, that defendant
JOHNNY RAY MARQUEZ operated the vehicle in a reckless and careless manner, and that plaintiff
sustained serious personal injuries. Plaintiff alleges injuries to the right shoulder, leftknee, neck
(cervical spine) and back (lumbar spine), requiring right shoulder surgery, pain and suffering, lost
range of motion, treatment with various doctors, the inability to return to work and inability to
resume usual and customary activities.
10. All p!eadings are annexed to this application as required by the CPLR as indicated
above, as Exhibits B and C, as well as the Notice to Admit and the Responses to same as Exhibits
D and E and the Billof Particulars as Exhibit F.
defendants'
11. The defendant NORTHSHORE UNIVERSITY HOSPITAL, as the owner of
subject vehicle which was being operated by defendant JOHNNY RAY MARQUEZ with the
knowledge and consent of defendants NORTHWELL HEALTH, INC. and NORTHSHORE
UNIVERSITY HOSPITAL isvicariously liable for the negligêñt acts of the vehicle operator JOHNNY
RAY MARQUEZ under New York State Vehicle and Traffic Law Section 388 entitled "Negligêñce
owner"
in use or operation of vehicle attributable to which states in pertinent part:
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"1. Every owner of a vehicle used or operated in this state shall be liable and
responsible for death or injuries to person or property resulting from negligence in
the use or operation of such vehicle, in the business of such owner or otherwise,
by any person using or operating the same with the permission, express or implied,
of such owner. Whenever any vehicles as hereinafter defined shall be used in
combination with one another, by attachment or tow, the person using or operating
any one vehicle shall, for the purposes of this section, be deemed to be using or
operating each vehicle in the combination, and the owners thereof shall be jointly
hereunder."
and severally liable
12. In addition, the defendant NORTHWELL HEALTH, INC., as the employer of
defendants'
defendant vehicle operator JOHNNY RAY MARQUEZ who was operating subject
vehicle during and in the course of his employment is vicariously liable for the negligent acts of
the vehicle operator, employee defendant JOHNNY RAY MARQUEZ. Pursuant to the doctrine of
respondeat superior, liabilityfor an employee's tortious acts may be imputed to the employer
when they were ccmmitted "in furtherance of the employer's business and within the scope of
emp|cyment"
(Holmes v Gary Goldberg & Co., Inc., 40 A.D.3d 1033, 838 N.Y.S.2d 105, 2007 N.Y.
Slip Op. 04595 (2d Dept 2007); N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 765
N.E.2d 844 (Ct. of App 2002).)
defendants'
13. The admissions in Response to the Notice to Admit eliminate issues of
fact with respect to ownership of the vehicle and defendant driver's employment on the date of
the accident and the sworn affidavit of plaintiff (below) and non-party witness (below) eliminate
all other issues of fact in this matter.
AFFIDAVIT OF NON-PARTY WITNESS JENAVIEVE HATCH
14. Annexed hereto as EXHIBIT G isAffidavit of non-party witness JENAVIEVE HATCH,
16™ witness JENAVIEVE
sworn to on the day of August, 2018. In her sworn Affidavit, non-party
HATCH states:
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• My name isJENAVIEVE HATCH. DOB is [REDACTED FOR PRIVACY]. social
My My security
number is [REDACTED FOR PRIVACY]. I liveat 355 63rdstreet, Apt 3F, Brooklyn, New York
11220.
• I was a rear seat passenger in a green taxi on March 2017 that was involved in an
29,
accident on the Brooklyn queens Expressway. The accident occurred at approximately
9:30 PM.
• I was picked the taxi near the Barclays Center and was to apartment
up by traveling my
when the accident happened. The only people in the taxi were the driver and myself.
• When the taxi got onto the BQE itwas in the middle lane. There was
traveling heavy traffic,
bumper to bumper. The taxi was not traveling fast due to traffic conditions. The taxi was
maintain a distance behind the black vehicle ahead of us in the middle lane. My driver
was not using his phone and was not changing lanes.
• While due to the traffic conditions, an ambulance struck the rear of the taxi. The
sivwing
impact was heavy. Itwas so heavy that itpushed the taxi forward and as a result the taxi
struck the black vehicle ahead of us. Allof this took place in the middle lane.
• Before the accident, the taxi did not skid or slide on the road. I didnot hear any screeching
brakes or tires. The ambulance did not have its lights or sirens on.
• The first impact was between the front of the ambulance and the rear of taxi. Itwas
my
so hard that I was jolted forward and my shipping bags went flying in the back seat.
• The second impact was between the front of the taxi and the rear of the black vehicle and
was not as hard as the first impact. The black vehicle did not wait for the police to arrive.
• I was very nervous because after the accident, the taxi driver was not responsive to me.
He was either in shock or unconscious. I was asking him ifhe was ok but he could not
respond. I called 911. The drive was not responsive for a few minutes until the ambulance
driver came to his window and knocked on the door.
• The ambulance driver asked the taxi driver ifhe was alright and the taxi driver came to
and said he was in pain and his back was hurting. I asked the ambulance driver what
happened and the ambulance driver responded by shrugging and saying "I went forward
looking."
and I was not I was very upset that he was unapologetic.
• While we waited for the police the taxi driver stayed in his seat and was moaning in pain.
When the police came, I gave them my name and phone number. When the ambulance
arrived, the taxi driver was put on a stretcher and taken to the hospital. I gave the taxi
driver my name and phone number in case he needed a witness.
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• I have read this statement and itis true and accurate.
15. It is respectfully submitted that based upon the sworn affidavit of non-party
witness alone, plaintiff has demonstrated a prima facie entitlement to summary judgment on the
issue of liability, that plaintiff is free from fault as the driver of a vehicle struck in the rear by
defendants vehicle which was the sole cause of the accident, without any fault or wrongdoing on
the part of the plaintiff or any non-party.
PLAINTIFF'S AF FIDAVIT
16. Annexed hereto as EXHIBIT H is the Affidavit of Plaintiff OGUNWALE ELEBUTE
15th
sworn to on the day of August, 2018. in his sworn Affidavit, plaintiff indicates that:
• I am the Plaintiff in the above captioned matter and I submit this affidavit in support of
Plaintiff's Motion for Summary Judgment on the Issue of Liability and to Strike/Dismiss
Defendants'
Affirmative Defenses that relate to the issue of liability.
• On March 29, 2017, I was the driver of a motor vehicle which was struck in the rear the
by
defendants'
motor vehicle. The accident occurred on the Brooklyn Queens Expressway
(BQE) westbound in Brooklyn, New York.
• At the time of the accident, the vehicle I was operating was slowing down in the middle
lane of the BQE westbound. The weather was clear. The roadway was dry. There was no
construction in the area and there were no visual obstructions.
• At the time and location of the accident, the BQE was a two way roadway (eastbound and
westbound) which was divided by a concrete divider. The road was straight and level with
three moving lanes for the westbound direction. There was an unobstructed view of the
roadway while traveling on the BQE westbound.
• Before the accident, I had been traveling in the middle lane on the BQE westbound. Traffic
conditions were slow, bumper to bumper, stop and go. I was operating my motor vehicle
within the speed limit; I did not change lanes from the middle lane; I did not move out of
the middle lane; and my vehicle did not skid, slide or swerve on the roadway.
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• While on the BQE westbound in the middle lane, vehicles ahead of me slowed down due
to traffic conditions as described, brake lights on the vehicles ahead were clearly visible
and illuminated, and I also slowed down due to the traffic ahead. Before slowing, I did not
change lanes, did not skid, did not slide on the roadway and did not hitthe car in front of
me. My vehicle was slowing at a gradual pace, itwas not a short stop or a sudden stop.
• My vehicle was in the middle lane for 5 seconds before the
slowing approximately
accident. During that time, I had my right foot on the brake and I was maintaining the
distance to the car ahead of me.
• When my vehicle was down for 5 seconds, a motor vehicle that I
slowing approximately
later learned was owned by defendants NORTHWELL HEALTH, INC. and NORTHSHORE
UNIVERSITY HOSPITAL and operated by defendant JOHNNY RAY MARQUEZ while in the
course of his employment with defendants NORTHWELL HEALTH, INC. and NORTHSHORE
UNIVERSITY HOSPITAL, struck the rear of my vehicle. The rear impact was heavy and was
defendants'
between the front of the vehicle and the rear of my vehicle.
• The impact to my rear took place in the middle lane. vehicle was within the
My entirely
middle lane before and during the accident. As a result of the rear impact, my vehicle was
pushed forward and struck the rear of the vehicle ahead of me.
• vehicle sustained rear end damage as a result of the rear end impact.
My
• defendants'
Before the accident, vehicle, an ambulance, did not have its lights or sirens
on.
• As the driver of a slowing vehicle that was struck in the rear, I didnot do anything to cause
or contribute to the happening of this accident.
• As a result of the accident, I sustained serious personal injuries to my right shoulder, left
knee, back (lumbar spine) and neck (cervical spine), requiring right shoulder surgery, which
has caused me asignificant amount of pain and suffering, lost range of motion, treatment
with various doctors, the inability to return to work and the inability to resume my usual
and customary duties and activities.
17. Itis respectfully submitted that based upon the plaintiff's affidavit alone, plaintiff
has demonstrated a prima facie entitlement to summary judgment. Coupled with the certified
police report and the affidavit of the non-party witness as well as the admittances contained in
defendants'
Response to Notice To Admit, there is no question that plaintiff is entitled to
summary judgment on the issue of liabilitythat this accident was caused solely by the defendants
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and as a result without any fault or wrongdoing on the part of the plaintiff or any non-party to
this litigation.
DEFENDANT'S ADMISSION AGAINST INTEREST
AT THE ACCIDENT SCENE
18. A of the Certified Police Accident Report with the NYSDMV cover page MV-
copy
104COV is annexed hereto as EXHIBIT A. According to the report, the plaintiff OGUNWALE
ELEBUTE was the driver of vehicle #1, defendant NORTHSHORE UNIVERSITY HOSPITAL was the
registered owner and defendant JOHNNY RAY MARQUEZ was the driver of vehicle #2, and the
accident took place on I 278 [Brooklyn Queens Expressway] westbound, County of Kings on
March 29, 2017. Also according to the report, the driver of vehicle #2 (defendant JOHNNY RAY
MARQUEZ) stated that "while traveling westbound on BQE at Degraw Street he rear ended
#1"
vehicle (Emphasis added).
defendants'
19. As the Court can see, the defendant driver conceded that vehicle
struck plaintiff's vehicle in the rear. Itis clear based upon these statements that defendant driver
failed to maintain a safe distance behind plaintiff and was following too closely.
20. Although not necessary to establish plaintiff's prima facie entitlement to summary
judgement, defendant driver's statement to the responding police officer at the accident scene is
admissible as a party admission. Based upon this admission, itis clearthat defendant driver struck
plaintiff's vehicle in the rear. Moreover, the police report demonstrates that defendants cannot
provide a non-negligent explanation for the subject accident.
21. Itis well settled that a defendant's statement to a police officer at scene of accident
isadmissible as the admission of a party.
22. Itis well settled that a defendant's statement to a police officer at scene of accident
isadmissible as the admission of a party. See Kemenyash v. McGoey, 306 A.D.2d 516, 762 N.Y.S.2d
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629, 2003 N.Y. Slip Op. 15709, N.Y.A.D. 2 Dept.,2003 ["contrary to the defendant's contention, his
statement was admissible as the admission of a party"]; Abramov v Miral Corp., 24 A.D.3d 397,
defendants'
805 N.Y.S.2d 119, 2005 N.Y. Slip Op. 09261, N.Y., 2005 ["contrary to the contention,
the Supreme Court properly considered the police accident report which contained [defendant's]
admission immediately following the accident that he had observed the pedestrian in the
intersection but was unable to stop in time"]; Rosenblatt v Venizelos, 49 A.D.3d 519, 853 N.Y.S.2d
578, 2008 N.Y. SlipOp. 01935, N.Y., 2008; Guevara v. Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465,
N.Y.A.D., 2003 ["police officer, who prepared the report, was acting within the scope of his duty
in recording plaintiff's statement, and the statement was admissible as the admission of a party"].
23. In Kemenyash v. McGoe_y, 306 A.D.2d 516, 762 N.Y.S.2d 629, 2003 N.Y. Slip Op.
15709, N.Y.A.D. 2 Dept., 2003. Appellate Division, Second Department, New York reversed the
lower court's denial of Summary Judgment and held that defendant's statement to police officer
at scene of accident was admissible as the admission of a party. In Kemenyash, plaintiff submitted
a police accident report recorded by a police officer at the scene, which contained an admission
by the defendant that, as he was taking the key out of his vehicle's ignition, his vehicle rolled
forward and hit the plaintiff, who was standing behind the plaintiff's parked vehicle. The Court
indicated that contrary to the defendant's contention, his statement was admissible as the
admission of a party (see Guevara v. Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465, N.Y.A.D., 2003;
I Matter of Nationwide Mut. Ins. Co. v McMillan, 288 A.D.2d 224, 732 N.Y.S.2d 431, 2001 N.Y. Slip
Op. 08954, N.Y.A.D., 2001; Aloi v Firebird Frgt. Serv. Corp.., 251 A.D.2d 608, 675 N.Y.S.2d 107,
1998 N.Y. Slip Op. 06630, N.Y.A.D., 1998).
24. Similarly, in Abramov v Miral Corp, 24 A.D.3d 397, 805 N.Y.S.2d 119, 2005 N.Y. Slip
Op. 09261, N.Y., 2005, the Appellate Division, Second Department affirmed an Order of the lower
defendants'
Court granting Summary Judgment and found that "contrary to the contention, the
Supreme Court properly considered the police accident report which contained [defendant's]
admission immediately following the accident that he had observed the pedestrian in the
intersection but was unable to stop in time (see Grange v Jacobs, 11 A.D.3d 582, 783 N.Y.S.2d 634,
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2004 N.Y. Slip Op. 07460, N.Y., 2004; Guevara v. Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465,
N.Y.A.D., 2003).
25. Also, in Rosenblatt v Venizelos, 49 A.D.3d 519, 853 N.Y.S.2d 578, 2008 N.Y. Slip Op.
01935, N.Y., 2008, the Appellate Division, Second Department affirmed an order of the lower
court granting Summary Judgment in which plaintiff had submitted the police accident report,
containing defendant's admission immediately following the accident that his car had struck the
plaintiff.
26. Finally, in Guevara v. Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465, N.Y.A.D., 2003,
the Appellate Division, Second Department affirmed an order of the lower Court granting
Summary Judgement and indicated that the Supreme Court properly considered the police
defendants'
accident report submitted on the motion for summary judgment, which contained a
statement by the plaintiff that he had fallen asleep while driving and that his vehicle had crossed
1 into oncoming traffic. The Court indicated that the police officer, who prepared the report, was
acting within the scope of his duty in recording plaintiff's statement, and the statement was
admissible as the admission of a party (see Ferrara v Poranski, 88 AD2d 904 [1982]; Murray v
Donlan, 77 AD2d 337 [1980]; Chemical Leaman Tank Lines v Stevens. 21 AD2d 556 [1964]; see also
Matter of Leon RR, 48 NY2d 117, 122-123 [1979]).
27. Itis respectfully submitted, that the plaintiff'sAffidavit alone, but coupled with the
defendant driver's statement against interest contained in the police report eliminate any factual
defendants'
dispute as to how this incident occurred. Itis clear and uncontested that the vehicle
struck the plaintiff's vehicle in the rear. As such, there isclearly no evidence that can be submitted
to this Court that could point to any negligence of the plaintiff, nor any triable issues of fact that
would warrant denial of the motion. Under the circumstances, summary judgment must be
granted as there are no genuine issues of material fact that require a trial on the issue of
defendants'
liabilityfor causing the accident.
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THE COURT SHOULD GRANT SUMMARY JUDGMENT
IN FAVOR OF THE PLAINTIFF BECAUSE
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FILED: KINGS COUNTY CLERK 08/16/2018 07:44 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 08/16/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------X OGUNWALE ELEBUTE, Index #: 520675/2017 Plaintiff(s), AFFIRMATION IN SUPPORT -against- NORTHWELL HEALTH, INC., NORTHSHORE UNIVERSITY HOSPITAL and .IOHNNY RAY MARQUEZ, Defendants. -------------- ------------------X IRA B. GORDON, ESQ., an attorney duly admitted to practice before the courts of the State of New York, affirms the following under the penalties of perjury pursuant to the applicable provisions of the CPLR: 1. I am an associate in the law firm of WESER & WESER, P.C., attorneys for the plaintiff herein, and as such, I am fullyfamiliar with allof the facts and circumstances herein. 2. I submit this affirmation in support of the instant motion for an Order: A. Pursuant to CPLR § 3212, granting summary judgment in favor of the plaintiff and against defendants on the issue of liability; B. Dismissing the following affirmative defenses raised in the Answer of defendants NORTHWELL HEALTH, INC., NORTHSHORE UNIVERSITY HOSPlTAL and JOHNNY RAY MARQUEZ, to plaintiff's complaint: • the Fj1RST affirmative defense alleging culpable conduct of the plaintiff because of the plaintiff's negligence or assumption of risk; • the THIRD affirmative defense alleging negligence or other culpable conduct of third parties over which defendant had not control or right to exercise control; • the FOURTH affirmative defense alleging limitation of liability pursuant to Article 16 of the CPLR; WESER & WESER 3 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 1 of 31 FILED: KINGS COUNTY CLERK 08/16/2018 07:44 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 08/16/2018 • the FIFTH affirmative defense plaintiff is barred from under the alleging recovery doctrine of primary assumption of risk; • the SIXTH affirmative defense the complaint fails to state a cause of action alleging upon which relief may be granted; and • the NINTH affirmative defense one or more of the parties named as alleging defendants are improper; C. Directing that discovery proceed on the issue of damages only; D. Directing a trial on the issue of damages only; and E. For such other and further relief as to the court may seem just and proper. BACKGROUND AND PROCEDURAL HISTORY 3. This is an action to recover damages for severe personal injuries sustained by plaintiff, the driver of a vehicle that was struck in the rear by a vehicle owned and operated by defendants' defendants. Defendant NORTHSHORE UNIVERSITY HOSPITAL is the owner of subject vehicle. Defendant NORTHWELL HEALTH, INC. is the employer of defendant JOHNNY defendants' RAY MARQUEZ who was operating subject vehicle during and in the course of his defendants' emplayment. As a result of negligence in their ownership and operation of the vehicle, during and in the course of defendant driver's employment, plaintiff was caused to sustain serious personal injuries. 4. A of the Certified Police Accident Report with the NYSDMV cover page MV- copy A.1 104COV is annexed hereto as EXHIBIT According to the report, the plaintiff OGUNWALE ELEBUTE was the driver of vehicle #1, defendant NORTHSHORE UNIVERSITY HOSPITAL was the 1 report The policereport is redactedto omit dates ofbirthand motoristID numbers due to privacyconcerns. The police is NOT needed to establishplaintiff's prima facieentit!êmêñtto summary judgement asplaintiff submits a sworn affidavit in supportof thismotion (seebelow) and a sworn affidavitofa witness/passenger (see below) which establishesplaintiff's prima facie case. The police reportis offeredon the motion, however, forthe record and toensure thatdefendants, in opposition to thismotion, willbe unable to provide a non-negligent explanation forstriking vehicle plaintiff's in therear, and to ensure that defendants do not attempt to raisea feigned issueof factor to contradictthe police report. WESER & WESER 4 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 2 of 31 FILED: KINGS COUNTY CLERK 08/16/2018 07:44 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 08/16/2018 registered owner and defendant JOHNNY RAY MARQUEZ was the driver of vehicle #2, and the accident took place on I 278 [Brooklyn Queens Expressway] westbound, County of Kings on March 29, 2017. Also according to the report, the driver of vehicle #2 (defendant JOHNNY RAY MARQUEZ) stated that "while traveling westbound on BQE at Degraw Street he rear ended #1" vehicle (Emphasis added). 5. On October 25, 2017, plaintiff filed a Summons and Verified Complaint (EXHIBIT B) resulting from the subject accident. The complaint alleges ñêgligence on behalf of defendants as the owners, lessors and operator of defendants subject vehicle involved in the subject accident. 6. The defendants NORTHWELL HEALTH, INC., NORTHSHORE UNIVERSITY HOSPITAL and JOHNNY RAY MARQUEZ joined issue by service of an Answer dated January 11, 2018 (EXHIBIT C). In their Answer, defendants raised the FIRST affirmative defense a||eging culpable conduct of the plaintiff because of the plaintiff's neg|igence or assumption of risk;the THIRD affirmative defense alleging negligence or other culpable conduct of third parties over which defendant had not control or right to exercise control; the FOURTH affirmative defense alleging limitation of liabilitypursuant to Article 16 of the CPLR; the FIFTH affirmative defense alleging plaintiff is barred from recovery under the doctrine of primary assumption of risk; and the SIXTH affirmative defense alleging the complaint fails to state a cause of action upon which relief may be granted; and the NINTH affirmative defense alleging one or more of the parties named as defendants are improper. Plaintiff now seeks to dismiss and strike these Affirmative Defenses as there are no issues as to liability in this matter, there are no other parties that may be liable for this accident and these affirmative defenses have no merit. 7. In order to eliminate the preliminary issues with respect to ownership of defendants' subject vehicle involved in the subject accident and the employment relationship between the defendants on the date of the accident, plaintiff served a Notice to Admit upon defendants. WESER & WESER 5 1392ConeyIsland Aven e Brooklyn, NY 11230 (718) 338-3000 3 of 31 FILED: KINGS COUNTY CLERK 08/16/2018 07:44 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 08/16/2018 8. Plaintiff served a Notice To Admit dated May 21, 2018 (EXHIBIT D) upon defendants and by Response To Notice To Admit dated May 24, 2018 (EXHIBIT E) defendants admitted that defendant NORTHSHORE UNIVERSITY HOSPITAL was the registered owner of defendants' subject vehicle on the date of subject accident (Notice To Admit paragraph #s 9, 10, 11 and 12) and that defendant JOHNNY RAY MARQUEZ was employed by defendant NORTHWELL HEALTH, INC. on the date of the subject accident (Notice To Admit paragraph # 31). 9. By Verified Billof Particulars (EXHIBIT F), plaintiff amplified the pleadings and alleged that defendants were careless, reckless and negligent in the ownership, operation, defendants' management, maintenance and control of the subject vehicle, that defendant JOHNNY RAY MARQUEZ operated the vehicle in a reckless and careless manner, and that plaintiff sustained serious personal injuries. Plaintiff alleges injuries to the right shoulder, leftknee, neck (cervical spine) and back (lumbar spine), requiring right shoulder surgery, pain and suffering, lost range of motion, treatment with various doctors, the inability to return to work and inability to resume usual and customary activities. 10. All p!eadings are annexed to this application as required by the CPLR as indicated above, as Exhibits B and C, as well as the Notice to Admit and the Responses to same as Exhibits D and E and the Billof Particulars as Exhibit F. defendants' 11. The defendant NORTHSHORE UNIVERSITY HOSPITAL, as the owner of subject vehicle which was being operated by defendant JOHNNY RAY MARQUEZ with the knowledge and consent of defendants NORTHWELL HEALTH, INC. and NORTHSHORE UNIVERSITY HOSPITAL isvicariously liable for the negligêñt acts of the vehicle operator JOHNNY RAY MARQUEZ under New York State Vehicle and Traffic Law Section 388 entitled "Negligêñce owner" in use or operation of vehicle attributable to which states in pertinent part: WESER & WESER 6 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 4 of 31 FILED: KINGS COUNTY CLERK 08/16/2018 07:44 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 08/16/2018 "1. Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner. Whenever any vehicles as hereinafter defined shall be used in combination with one another, by attachment or tow, the person using or operating any one vehicle shall, for the purposes of this section, be deemed to be using or operating each vehicle in the combination, and the owners thereof shall be jointly hereunder." and severally liable 12. In addition, the defendant NORTHWELL HEALTH, INC., as the employer of defendants' defendant vehicle operator JOHNNY RAY MARQUEZ who was operating subject vehicle during and in the course of his employment is vicariously liable for the negligent acts of the vehicle operator, employee defendant JOHNNY RAY MARQUEZ. Pursuant to the doctrine of respondeat superior, liabilityfor an employee's tortious acts may be imputed to the employer when they were ccmmitted "in furtherance of the employer's business and within the scope of emp|cyment" (Holmes v Gary Goldberg & Co., Inc., 40 A.D.3d 1033, 838 N.Y.S.2d 105, 2007 N.Y. Slip Op. 04595 (2d Dept 2007); N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 765 N.E.2d 844 (Ct. of App 2002).) defendants' 13. The admissions in Response to the Notice to Admit eliminate issues of fact with respect to ownership of the vehicle and defendant driver's employment on the date of the accident and the sworn affidavit of plaintiff (below) and non-party witness (below) eliminate all other issues of fact in this matter. AFFIDAVIT OF NON-PARTY WITNESS JENAVIEVE HATCH 14. Annexed hereto as EXHIBIT G isAffidavit of non-party witness JENAVIEVE HATCH, 16™ witness JENAVIEVE sworn to on the day of August, 2018. In her sworn Affidavit, non-party HATCH states: WESER & WESER 7 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 5 of 31 FILED: KINGS COUNTY CLERK 08/16/2018 07:44 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 08/16/2018 • My name isJENAVIEVE HATCH. DOB is [REDACTED FOR PRIVACY]. social My My security number is [REDACTED FOR PRIVACY]. I liveat 355 63rdstreet, Apt 3F, Brooklyn, New York 11220. • I was a rear seat passenger in a green taxi on March 2017 that was involved in an 29, accident on the Brooklyn queens Expressway. The accident occurred at approximately 9:30 PM. • I was picked the taxi near the Barclays Center and was to apartment up by traveling my when the accident happened. The only people in the taxi were the driver and myself. • When the taxi got onto the BQE itwas in the middle lane. There was traveling heavy traffic, bumper to bumper. The taxi was not traveling fast due to traffic conditions. The taxi was maintain a distance behind the black vehicle ahead of us in the middle lane. My driver was not using his phone and was not changing lanes. • While due to the traffic conditions, an ambulance struck the rear of the taxi. The sivwing impact was heavy. Itwas so heavy that itpushed the taxi forward and as a result the taxi struck the black vehicle ahead of us. Allof this took place in the middle lane. • Before the accident, the taxi did not skid or slide on the road. I didnot hear any screeching brakes or tires. The ambulance did not have its lights or sirens on. • The first impact was between the front of the ambulance and the rear of taxi. Itwas my so hard that I was jolted forward and my shipping bags went flying in the back seat. • The second impact was between the front of the taxi and the rear of the black vehicle and was not as hard as the first impact. The black vehicle did not wait for the police to arrive. • I was very nervous because after the accident, the taxi driver was not responsive to me. He was either in shock or unconscious. I was asking him ifhe was ok but he could not respond. I called 911. The drive was not responsive for a few minutes until the ambulance driver came to his window and knocked on the door. • The ambulance driver asked the taxi driver ifhe was alright and the taxi driver came to and said he was in pain and his back was hurting. I asked the ambulance driver what happened and the ambulance driver responded by shrugging and saying "I went forward looking." and I was not I was very upset that he was unapologetic. • While we waited for the police the taxi driver stayed in his seat and was moaning in pain. When the police came, I gave them my name and phone number. When the ambulance arrived, the taxi driver was put on a stretcher and taken to the hospital. I gave the taxi driver my name and phone number in case he needed a witness. WEsER & WESER 8 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 6 of 31 FILED: KINGS COUNTY CLERK 08/16/2018 07:44 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 08/16/2018 • I have read this statement and itis true and accurate. 15. It is respectfully submitted that based upon the sworn affidavit of non-party witness alone, plaintiff has demonstrated a prima facie entitlement to summary judgment on the issue of liability, that plaintiff is free from fault as the driver of a vehicle struck in the rear by defendants vehicle which was the sole cause of the accident, without any fault or wrongdoing on the part of the plaintiff or any non-party. PLAINTIFF'S AF FIDAVIT 16. Annexed hereto as EXHIBIT H is the Affidavit of Plaintiff OGUNWALE ELEBUTE 15th sworn to on the day of August, 2018. in his sworn Affidavit, plaintiff indicates that: • I am the Plaintiff in the above captioned matter and I submit this affidavit in support of Plaintiff's Motion for Summary Judgment on the Issue of Liability and to Strike/Dismiss Defendants' Affirmative Defenses that relate to the issue of liability. • On March 29, 2017, I was the driver of a motor vehicle which was struck in the rear the by defendants' motor vehicle. The accident occurred on the Brooklyn Queens Expressway (BQE) westbound in Brooklyn, New York. • At the time of the accident, the vehicle I was operating was slowing down in the middle lane of the BQE westbound. The weather was clear. The roadway was dry. There was no construction in the area and there were no visual obstructions. • At the time and location of the accident, the BQE was a two way roadway (eastbound and westbound) which was divided by a concrete divider. The road was straight and level with three moving lanes for the westbound direction. There was an unobstructed view of the roadway while traveling on the BQE westbound. • Before the accident, I had been traveling in the middle lane on the BQE westbound. Traffic conditions were slow, bumper to bumper, stop and go. I was operating my motor vehicle within the speed limit; I did not change lanes from the middle lane; I did not move out of the middle lane; and my vehicle did not skid, slide or swerve on the roadway. WESER & WESER 9 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 7 of 31 FILED: KINGS COUNTY CLERK 08/16/2018 07:44 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 08/16/2018 • While on the BQE westbound in the middle lane, vehicles ahead of me slowed down due to traffic conditions as described, brake lights on the vehicles ahead were clearly visible and illuminated, and I also slowed down due to the traffic ahead. Before slowing, I did not change lanes, did not skid, did not slide on the roadway and did not hitthe car in front of me. My vehicle was slowing at a gradual pace, itwas not a short stop or a sudden stop. • My vehicle was in the middle lane for 5 seconds before the slowing approximately accident. During that time, I had my right foot on the brake and I was maintaining the distance to the car ahead of me. • When my vehicle was down for 5 seconds, a motor vehicle that I slowing approximately later learned was owned by defendants NORTHWELL HEALTH, INC. and NORTHSHORE UNIVERSITY HOSPITAL and operated by defendant JOHNNY RAY MARQUEZ while in the course of his employment with defendants NORTHWELL HEALTH, INC. and NORTHSHORE UNIVERSITY HOSPITAL, struck the rear of my vehicle. The rear impact was heavy and was defendants' between the front of the vehicle and the rear of my vehicle. • The impact to my rear took place in the middle lane. vehicle was within the My entirely middle lane before and during the accident. As a result of the rear impact, my vehicle was pushed forward and struck the rear of the vehicle ahead of me. • vehicle sustained rear end damage as a result of the rear end impact. My • defendants' Before the accident, vehicle, an ambulance, did not have its lights or sirens on. • As the driver of a slowing vehicle that was struck in the rear, I didnot do anything to cause or contribute to the happening of this accident. • As a result of the accident, I sustained serious personal injuries to my right shoulder, left knee, back (lumbar spine) and neck (cervical spine), requiring right shoulder surgery, which has caused me asignificant amount of pain and suffering, lost range of motion, treatment with various doctors, the inability to return to work and the inability to resume my usual and customary duties and activities. 17. Itis respectfully submitted that based upon the plaintiff's affidavit alone, plaintiff has demonstrated a prima facie entitlement to summary judgment. Coupled with the certified police report and the affidavit of the non-party witness as well as the admittances contained in defendants' Response to Notice To Admit, there is no question that plaintiff is entitled to summary judgment on the issue of liabilitythat this accident was caused solely by the defendants WESER & WESER 10 1392 Coney Island Aven .e Brooklyn, NY 11230 (718) 338-3000 8 of 31 FILED: KINGS COUNTY CLERK 08/16/2018 07:44 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 08/16/2018 and as a result without any fault or wrongdoing on the part of the plaintiff or any non-party to this litigation. DEFENDANT'S ADMISSION AGAINST INTEREST AT THE ACCIDENT SCENE 18. A of the Certified Police Accident Report with the NYSDMV cover page MV- copy 104COV is annexed hereto as EXHIBIT A. According to the report, the plaintiff OGUNWALE ELEBUTE was the driver of vehicle #1, defendant NORTHSHORE UNIVERSITY HOSPITAL was the registered owner and defendant JOHNNY RAY MARQUEZ was the driver of vehicle #2, and the accident took place on I 278 [Brooklyn Queens Expressway] westbound, County of Kings on March 29, 2017. Also according to the report, the driver of vehicle #2 (defendant JOHNNY RAY MARQUEZ) stated that "while traveling westbound on BQE at Degraw Street he rear ended #1" vehicle (Emphasis added). defendants' 19. As the Court can see, the defendant driver conceded that vehicle struck plaintiff's vehicle in the rear. Itis clear based upon these statements that defendant driver failed to maintain a safe distance behind plaintiff and was following too closely. 20. Although not necessary to establish plaintiff's prima facie entitlement to summary judgement, defendant driver's statement to the responding police officer at the accident scene is admissible as a party admission. Based upon this admission, itis clearthat defendant driver struck plaintiff's vehicle in the rear. Moreover, the police report demonstrates that defendants cannot provide a non-negligent explanation for the subject accident. 21. Itis well settled that a defendant's statement to a police officer at scene of accident isadmissible as the admission of a party. 22. Itis well settled that a defendant's statement to a police officer at scene of accident isadmissible as the admission of a party. See Kemenyash v. McGoey, 306 A.D.2d 516, 762 N.Y.S.2d WESER & WESER 11 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 9 of 31 FILED: KINGS COUNTY CLERK 08/16/2018 07:44 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 08/16/2018 629, 2003 N.Y. Slip Op. 15709, N.Y.A.D. 2 Dept.,2003 ["contrary to the defendant's contention, his statement was admissible as the admission of a party"]; Abramov v Miral Corp., 24 A.D.3d 397, defendants' 805 N.Y.S.2d 119, 2005 N.Y. Slip Op. 09261, N.Y., 2005 ["contrary to the contention, the Supreme Court properly considered the police accident report which contained [defendant's] admission immediately following the accident that he had observed the pedestrian in the intersection but was unable to stop in time"]; Rosenblatt v Venizelos, 49 A.D.3d 519, 853 N.Y.S.2d 578, 2008 N.Y. SlipOp. 01935, N.Y., 2008; Guevara v. Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465, N.Y.A.D., 2003 ["police officer, who prepared the report, was acting within the scope of his duty in recording plaintiff's statement, and the statement was admissible as the admission of a party"]. 23. In Kemenyash v. McGoe_y, 306 A.D.2d 516, 762 N.Y.S.2d 629, 2003 N.Y. Slip Op. 15709, N.Y.A.D. 2 Dept., 2003. Appellate Division, Second Department, New York reversed the lower court's denial of Summary Judgment and held that defendant's statement to police officer at scene of accident was admissible as the admission of a party. In Kemenyash, plaintiff submitted a police accident report recorded by a police officer at the scene, which contained an admission by the defendant that, as he was taking the key out of his vehicle's ignition, his vehicle rolled forward and hit the plaintiff, who was standing behind the plaintiff's parked vehicle. The Court indicated that contrary to the defendant's contention, his statement was admissible as the admission of a party (see Guevara v. Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465, N.Y.A.D., 2003; I Matter of Nationwide Mut. Ins. Co. v McMillan, 288 A.D.2d 224, 732 N.Y.S.2d 431, 2001 N.Y. Slip Op. 08954, N.Y.A.D., 2001; Aloi v Firebird Frgt. Serv. Corp.., 251 A.D.2d 608, 675 N.Y.S.2d 107, 1998 N.Y. Slip Op. 06630, N.Y.A.D., 1998). 24. Similarly, in Abramov v Miral Corp, 24 A.D.3d 397, 805 N.Y.S.2d 119, 2005 N.Y. Slip Op. 09261, N.Y., 2005, the Appellate Division, Second Department affirmed an Order of the lower defendants' Court granting Summary Judgment and found that "contrary to the contention, the Supreme Court properly considered the police accident report which contained [defendant's] admission immediately following the accident that he had observed the pedestrian in the intersection but was unable to stop in time (see Grange v Jacobs, 11 A.D.3d 582, 783 N.Y.S.2d 634, WESER & WESER 12 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 10 of 31 FILED: KINGS COUNTY CLERK 08/16/2018 07:44 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 08/16/2018 2004 N.Y. Slip Op. 07460, N.Y., 2004; Guevara v. Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465, N.Y.A.D., 2003). 25. Also, in Rosenblatt v Venizelos, 49 A.D.3d 519, 853 N.Y.S.2d 578, 2008 N.Y. Slip Op. 01935, N.Y., 2008, the Appellate Division, Second Department affirmed an order of the lower court granting Summary Judgment in which plaintiff had submitted the police accident report, containing defendant's admission immediately following the accident that his car had struck the plaintiff. 26. Finally, in Guevara v. Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465, N.Y.A.D., 2003, the Appellate Division, Second Department affirmed an order of the lower Court granting Summary Judgement and indicated that the Supreme Court properly considered the police defendants' accident report submitted on the motion for summary judgment, which contained a statement by the plaintiff that he had fallen asleep while driving and that his vehicle had crossed 1 into oncoming traffic. The Court indicated that the police officer, who prepared the report, was acting within the scope of his duty in recording plaintiff's statement, and the statement was admissible as the admission of a party (see Ferrara v Poranski, 88 AD2d 904 [1982]; Murray v Donlan, 77 AD2d 337 [1980]; Chemical Leaman Tank Lines v Stevens. 21 AD2d 556 [1964]; see also Matter of Leon RR, 48 NY2d 117, 122-123 [1979]). 27. Itis respectfully submitted, that the plaintiff'sAffidavit alone, but coupled with the defendant driver's statement against interest contained in the police report eliminate any factual defendants' dispute as to how this incident occurred. Itis clear and uncontested that the vehicle struck the plaintiff's vehicle in the rear. As such, there isclearly no evidence that can be submitted to this Court that could point to any negligence of the plaintiff, nor any triable issues of fact that would warrant denial of the motion. Under the circumstances, summary judgment must be granted as there are no genuine issues of material fact that require a trial on the issue of defendants' liabilityfor causing the accident. WESER & WESER 13 1392 Coney Island Aven e Brooklyn, NY 11230 (718) 338-3000 11 of 31 FILED: KINGS COUNTY CLERK 08/16/2018 07:44 PM INDEX NO. 520675/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 08/16/2018 THE COURT SHOULD GRANT SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFF BECAUSE