Preview
FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/22/2019
SUPREME COURT OF THE STATE OF NEW YORK
COLINTY OF KINGS
X
MUBASSHAR AHMAD, Index No.: 51435912019
Plaintiff, AFFIRMATION IN
SUPPORT
-against-
Honorable Karen B
FRANK A. DIMAULO, Rothenberg
Defendant.
X
Ronny Solomon, Esq., an attorney duly licensed to practice law in the Courts of the State
of New York, affirms the following to be true, under the penalties of perjury:
L I am an associate of THE LAMBROU LAW FIRM P.C., attorneys for Plaintiff
MUBASSHAR AHMAD and, as such, I am fully familiar with all of the facts and
circumstances of this matter. The source of my knowledge is the file and records maintained by
said law firm.
2. I submit this affirmation in support of the instant motion to (1) grant Plaintiff
summary judgment, pursuant to CPLR 3212, on the issue of liability on the basis that there are
no material issues of fact; (2) strike the affirmative defense of comparative negligence; and (3)
for such other and further relief as this Court deems just and proper.
3. The instant action seeks damages for serious, permanent injuries sustained by
Plaintiff arising out of a motor vehicle accident. As a result of this accident, Plaintiff sustained
severe injuries to his left shoulder and lower back. Plaintiff was diagnosed with a left shoulder
glenohumeral ligament insufficiency with shoulder instability and secondary impingement
syndrome, for which surgery has been recommended and will likely be performed in the near
future. In the interim, he underwent two lumbar trigger point injections, which were performed at
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Pain Management Specialists of New York on April23,2019 and June 11,2019, and a cortisone
injection to his left shoulder, which was performed at University Orthopedics of New York on
August 13, 2019. Plaintiff continues to suffer from debilitating pain.
4. The instant action was commenced by the filing of a Summons and Verified
Complaint on June 28,2019. A copy of the Summons and Verified Complaint is attached hereto
as Exhibit t'1."
5. Defendant FRANK A. DIMAULO interposed his Answer on August 27,2019. A
copy of Defendant's Answer is attached hereto as Exhibit "2."
6. A certified copy of the Police Accident Report describing the accident is attached
hereto as Exhibit t'3.tt
7. Plaintiffs affidavit, along with the other exhibits attached hereto, contain all of
the facts and establish the elements of this cause of action sounding in negligence against
Defendant. Plaintiffs affidavit is attached hereto as Exhibit "4." The use of an affidavit to
support a motion for summary judgment is well established in the CPLR: "A motion for
summary judgment shall be supported by an affidavit . . . by a person having knowledge of the
facts" (CPLR 3212 [b]).
FACTS
8. This lawsuit arises out of a rear-end motor vehicle accident, which occurred on
February 15,2019 on the Belt Parkway, near the Jamaica Bay Riding Academy entrance, in the
County of Kings, State of New York (see Exhibit "3"). The accident occurred when Defendant's
vehicle violently struck the rear of Plaintiff s vehicle.
9. Plaintiff, in his affrdavit, states that his vehicle was stopped for approximately 10
to 15 seconds when itwas rear-ended by Defendant's vehicle (Exhibittt4tt atfl 3). Defendant
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stated to the police that he "possibly fell asleep behind the wheel," which led to him colliding
with Plaintiffs vehicle (see Exhibit "3"). In fact, Plaintiff overheard Defendant "tell the
responding police offrcer that [Defendant] caused the accident because he 'fell asleep"' (Exhibit
"4" at fl 5).
ARGUMENT
10. As will be shown infra, Plaintiff makes a prima facie showing of entitlement to
summary judgment by virtue of the fact that his vehicle was stopped for up to l5 seconds when it
was struck in the rear by Defendant's vehicle because Defendant fell asleep at the wheel and was
not paying attention. "The proponent of a summary judgment motion must make a prima facie
showing of entitlement to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64
NY2d 851, 853 [1985]). To grant summary judgment, it must be clear that no material
or triable issues of fact are presented (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d
395,404 [1957]). We have adequately carried thatburden infra.
PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY
I L Plaintiffs motion for summary judgment on the issue of liability should be granted
in this action as there are no triable issues of fact with respect to liability. Plaintiff, whose stopped
vehicle was struck in the rear by Defendant's vehicle, did not in any way contribute to the
happening of this accident. Defendant inexplicably struck the rear of Plaintiffs vehicle while he
fell asleep behind the wheel, establishing negligence as a matter of law. Defendant is the only cause
of this accident.
12. As far as the substantive law on rear-end collisions are concerned, the Appellate
Division Second Department has repeatedly held liable a driver of a vehicle that rear-ends another
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vehicle causing an accident. This makes sense since the New York State Vehicle and Traffic Law
("VTL") mandates due care to avoid rear-end collisions and imposes on all drivers the duty of due
care. VTL $ 1129 states, in pertinent patt,that "[t]he driver of a motor vehicle shall not follow
another vehicle more closely than is reasonable and prudent, having due regard for the speed of such
vehicles and the traffic upon the condition of the highway" (Vehicle and Traffrc Law $ ll29 lal).
Furthermore, VTL $ 1180 states that "[n]o person shall drive a vehicle at a speed greater than is
reasonable and prudent under the conditions and having regard to the actual and potentialhazards
then existing" (Vehicle and Traffic Law $ 1180 [a]).
13. It is well settled that "[w]hen the driver of an automobile approaches another
automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control
over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle
(Wlliams v Spencer-Hall, II3 AD3d 759,759-60 [2d Dept 2014]). "Drivers have a duty to see what
should be seen and to exercise reasonable care under the circumstances to avoid an accident" (id.).
14, More specifically, and more importantly, "[a] rear-end collision into a stopped
automobile creates a prima facie case of liability with respect to the operator of the moving
vehicle" (Barile v Lazzarini, 222 AD2d 635, 636 [2d Dept 1995]). In such instances, a
defendant-operator is required to rebut the inference of negligence by excusing the collision
through a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on wet
pavement, or any other reasonable cause (Reid v Courtesy Bus Co.,234 AD2d 53I,532 [2d Dept
1996]). Where a defendant-operator "cannot come forward with any evidence to rebut the inference
of negligence, the plaintiff may be properly awarded judgment as a matter of law" (ld ).
15. Here, Defendant's vehicle rear-ended Plaintiffs vehicle, which was at a complete
stop for 10 to 15 seconds (see Exhibit rr4, at tf 3). This establishes liability as a matter of law.
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Defendant should have been more cautious when approaching the intersection. Defendant falling
asleep at the wheel is not a reason in which to rebut the inference of negligence because it is not
a reasonable excuse. He was not paying attention and failed to see what there was to be seen:
plaintiffs vehicle. He obviously did not exercise reasonable care under the circumstances and was
completely negligent in the operation of his vehicle, which was the sole cause of the collision with
Plaintiffs vehicle. Therefore, Plaintiff has established a prima facie case of Defendant's liability
and, hence, is entitled to summary judgment on the issue of liability.
S
SH
16. This motion seeks an order striking Defendant's affirmative defense of
comparative negligence. As previously stated, Plaintiffs vehicle was at a complete stop when it
was rear-ended by Defendant's vehicle. There is no conceivable way that Plaintiff could have
caused or contributed to the happening of this accident. In addition, Defendant, in his Answet,
stated that Plaintiff was comparatively negligent through his own culpable conduct (see Exhibit
"2"), which is an impossibility.
17. The Court of Appeals opined the standard that applies to motions of summary
judgment in personal injury cases in regard to comparative fault (see Rodriguez v City of New
York, 31 NY3d 312 l20l8l). "[A] plaintiff does not bear the double burden of establishing a
prima facie case of defendant's liability and the absence of his or her own comparative fault" (id.
at 324-25). As such, it is clear that the standard is that the plaintiff simply establishes that the
defendant's negligence was the cause of the accident. Any question of comparative fault must not
interfere with the granting of summary judgment in favor of the plaintiff on the issue of liability.
Furthermore, "[p]lacing the burden on the plaintiff to show an absence of comparative fault is
inconsistent with the plain language of CPLR 1412. .. . New York adopted a system of pure
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comparative negligence, and, in so doing, directed courts to consider a plaintiffs comparative
fault only when considering the amount of damages a defendant owes to plaintiff' (id. at3l8).
18. Based on Rodriguez,Plaintiff is not required to establish the absence of his own
comparative fault in order to establish entitlement to Summary Judgment on the issue of liability.
Assuming, arguendo, that Plaintiff does'need to do so, Plaintiff is not at fault whatsoever. He in
no way caused the accident. His vehicle was at a complete stop for 10 to 15 seconds before the
impact. Therefore, Defendant's affirmative defense of comparative negligence has no merit and
must be stricken.
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CONCLUSION
19. Based upon the foregoing, Plaintiff is entitled to summary judgment as a matter of
law on the issue of liability. Also, Defendant's affirmative defense of comparative negligence
should be stricken from his Answer.
WHEREFORE, Plaintiff requests an Order granting Plaintiff summary judgment,
pursuant to CPLR 3212, on the issue of liability; striking Defendant's affirmative defense of
comparative negligence; and for such other and further relief as this Court deems just and proper.
Dated: New York, New York
October 22,2019
Yours, etc
THE P.C.
By:
Ronny Solomon, Esq.
Attorneys for Plaintiff
MUBASSHAR AHMAD
45 Broadway, Suite 3120
New York, New York 10006
(2r2) 28s-2r00
To:
Howard Merkrebs, Esq.
zuVKIN RADLER LLP
Attomeys for Defendant
FRANK A. DIMAULO
926 RXR Plaza
Uniondale, New York 11556
(s16) 3s7-3000
File No.: 070660-00761
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Preview
FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/22/2019 SUPREME COURT OF THE STATE OF NEW YORK COLINTY OF KINGS X MUBASSHAR AHMAD, Index No.: 51435912019 Plaintiff, AFFIRMATION IN SUPPORT -against- Honorable Karen B FRANK A. DIMAULO, Rothenberg Defendant. X Ronny Solomon, Esq., an attorney duly licensed to practice law in the Courts of the State of New York, affirms the following to be true, under the penalties of perjury: L I am an associate of THE LAMBROU LAW FIRM P.C., attorneys for Plaintiff MUBASSHAR AHMAD and, as such, I am fully familiar with all of the facts and circumstances of this matter. The source of my knowledge is the file and records maintained by said law firm. 2. I submit this affirmation in support of the instant motion to (1) grant Plaintiff summary judgment, pursuant to CPLR 3212, on the issue of liability on the basis that there are no material issues of fact; (2) strike the affirmative defense of comparative negligence; and (3) for such other and further relief as this Court deems just and proper. 3. The instant action seeks damages for serious, permanent injuries sustained by Plaintiff arising out of a motor vehicle accident. As a result of this accident, Plaintiff sustained severe injuries to his left shoulder and lower back. Plaintiff was diagnosed with a left shoulder glenohumeral ligament insufficiency with shoulder instability and secondary impingement syndrome, for which surgery has been recommended and will likely be performed in the near future. In the interim, he underwent two lumbar trigger point injections, which were performed at 1 of 7 FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/22/2019 Pain Management Specialists of New York on April23,2019 and June 11,2019, and a cortisone injection to his left shoulder, which was performed at University Orthopedics of New York on August 13, 2019. Plaintiff continues to suffer from debilitating pain. 4. The instant action was commenced by the filing of a Summons and Verified Complaint on June 28,2019. A copy of the Summons and Verified Complaint is attached hereto as Exhibit t'1." 5. Defendant FRANK A. DIMAULO interposed his Answer on August 27,2019. A copy of Defendant's Answer is attached hereto as Exhibit "2." 6. A certified copy of the Police Accident Report describing the accident is attached hereto as Exhibit t'3.tt 7. Plaintiffs affidavit, along with the other exhibits attached hereto, contain all of the facts and establish the elements of this cause of action sounding in negligence against Defendant. Plaintiffs affidavit is attached hereto as Exhibit "4." The use of an affidavit to support a motion for summary judgment is well established in the CPLR: "A motion for summary judgment shall be supported by an affidavit . . . by a person having knowledge of the facts" (CPLR 3212 [b]). FACTS 8. This lawsuit arises out of a rear-end motor vehicle accident, which occurred on February 15,2019 on the Belt Parkway, near the Jamaica Bay Riding Academy entrance, in the County of Kings, State of New York (see Exhibit "3"). The accident occurred when Defendant's vehicle violently struck the rear of Plaintiff s vehicle. 9. Plaintiff, in his affrdavit, states that his vehicle was stopped for approximately 10 to 15 seconds when itwas rear-ended by Defendant's vehicle (Exhibittt4tt atfl 3). Defendant 2 of 7 FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/22/2019 stated to the police that he "possibly fell asleep behind the wheel," which led to him colliding with Plaintiffs vehicle (see Exhibit "3"). In fact, Plaintiff overheard Defendant "tell the responding police offrcer that [Defendant] caused the accident because he 'fell asleep"' (Exhibit "4" at fl 5). ARGUMENT 10. As will be shown infra, Plaintiff makes a prima facie showing of entitlement to summary judgment by virtue of the fact that his vehicle was stopped for up to l5 seconds when it was struck in the rear by Defendant's vehicle because Defendant fell asleep at the wheel and was not paying attention. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). To grant summary judgment, it must be clear that no material or triable issues of fact are presented (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395,404 [1957]). We have adequately carried thatburden infra. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY I L Plaintiffs motion for summary judgment on the issue of liability should be granted in this action as there are no triable issues of fact with respect to liability. Plaintiff, whose stopped vehicle was struck in the rear by Defendant's vehicle, did not in any way contribute to the happening of this accident. Defendant inexplicably struck the rear of Plaintiffs vehicle while he fell asleep behind the wheel, establishing negligence as a matter of law. Defendant is the only cause of this accident. 12. As far as the substantive law on rear-end collisions are concerned, the Appellate Division Second Department has repeatedly held liable a driver of a vehicle that rear-ends another 3 of 7 FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/22/2019 vehicle causing an accident. This makes sense since the New York State Vehicle and Traffic Law ("VTL") mandates due care to avoid rear-end collisions and imposes on all drivers the duty of due care. VTL $ 1129 states, in pertinent patt,that "[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon the condition of the highway" (Vehicle and Traffrc Law $ ll29 lal). Furthermore, VTL $ 1180 states that "[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potentialhazards then existing" (Vehicle and Traffic Law $ 1180 [a]). 13. It is well settled that "[w]hen the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (Wlliams v Spencer-Hall, II3 AD3d 759,759-60 [2d Dept 2014]). "Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident" (id.). 14, More specifically, and more importantly, "[a] rear-end collision into a stopped automobile creates a prima facie case of liability with respect to the operator of the moving vehicle" (Barile v Lazzarini, 222 AD2d 635, 636 [2d Dept 1995]). In such instances, a defendant-operator is required to rebut the inference of negligence by excusing the collision through a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause (Reid v Courtesy Bus Co.,234 AD2d 53I,532 [2d Dept 1996]). Where a defendant-operator "cannot come forward with any evidence to rebut the inference of negligence, the plaintiff may be properly awarded judgment as a matter of law" (ld ). 15. Here, Defendant's vehicle rear-ended Plaintiffs vehicle, which was at a complete stop for 10 to 15 seconds (see Exhibit rr4, at tf 3). This establishes liability as a matter of law. 4 of 7 FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/22/2019 Defendant should have been more cautious when approaching the intersection. Defendant falling asleep at the wheel is not a reason in which to rebut the inference of negligence because it is not a reasonable excuse. He was not paying attention and failed to see what there was to be seen: plaintiffs vehicle. He obviously did not exercise reasonable care under the circumstances and was completely negligent in the operation of his vehicle, which was the sole cause of the collision with Plaintiffs vehicle. Therefore, Plaintiff has established a prima facie case of Defendant's liability and, hence, is entitled to summary judgment on the issue of liability. S SH 16. This motion seeks an order striking Defendant's affirmative defense of comparative negligence. As previously stated, Plaintiffs vehicle was at a complete stop when it was rear-ended by Defendant's vehicle. There is no conceivable way that Plaintiff could have caused or contributed to the happening of this accident. In addition, Defendant, in his Answet, stated that Plaintiff was comparatively negligent through his own culpable conduct (see Exhibit "2"), which is an impossibility. 17. The Court of Appeals opined the standard that applies to motions of summary judgment in personal injury cases in regard to comparative fault (see Rodriguez v City of New York, 31 NY3d 312 l20l8l). "[A] plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault" (id. at 324-25). As such, it is clear that the standard is that the plaintiff simply establishes that the defendant's negligence was the cause of the accident. Any question of comparative fault must not interfere with the granting of summary judgment in favor of the plaintiff on the issue of liability. Furthermore, "[p]lacing the burden on the plaintiff to show an absence of comparative fault is inconsistent with the plain language of CPLR 1412. .. . New York adopted a system of pure 5 of 7 FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/22/2019 comparative negligence, and, in so doing, directed courts to consider a plaintiffs comparative fault only when considering the amount of damages a defendant owes to plaintiff' (id. at3l8). 18. Based on Rodriguez,Plaintiff is not required to establish the absence of his own comparative fault in order to establish entitlement to Summary Judgment on the issue of liability. Assuming, arguendo, that Plaintiff does'need to do so, Plaintiff is not at fault whatsoever. He in no way caused the accident. His vehicle was at a complete stop for 10 to 15 seconds before the impact. Therefore, Defendant's affirmative defense of comparative negligence has no merit and must be stricken. 6 of 7 FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/22/2019 CONCLUSION 19. Based upon the foregoing, Plaintiff is entitled to summary judgment as a matter of law on the issue of liability. Also, Defendant's affirmative defense of comparative negligence should be stricken from his Answer. WHEREFORE, Plaintiff requests an Order granting Plaintiff summary judgment, pursuant to CPLR 3212, on the issue of liability; striking Defendant's affirmative defense of comparative negligence; and for such other and further relief as this Court deems just and proper. Dated: New York, New York October 22,2019 Yours, etc THE P.C. By: Ronny Solomon, Esq. Attorneys for Plaintiff MUBASSHAR AHMAD 45 Broadway, Suite 3120 New York, New York 10006 (2r2) 28s-2r00 To: Howard Merkrebs, Esq. zuVKIN RADLER LLP Attomeys for Defendant FRANK A. DIMAULO 926 RXR Plaza Uniondale, New York 11556 (s16) 3s7-3000 File No.: 070660-00761 7 of 7