Preview
FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS Index No.: 523027/2020
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BORIS SOFIEV and YEHUDA SOUSSAN,
AFFIRMATION IN
Plaintiffs, SUPPORT OF
PLAINTIFF’S MOTION
-against- FOR SUMMARY
JUDGMENT
JUAN DEPENA and ENERGY TRUCKING LLC.,
Defendants.
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Stephen J. Liakas, ESQ., an attorney duly admitted to practice law before the Courts of the
State of New York, pursuant to CPLR § 2106, duly affirms the truth of the following:
1. I am a partner with the law firm, LIAKAS LAW, P.C., attorneys for Plaintiff, YEHUDA
SOUSSAN, and as such I am fully familiar with the facts and circumstances surrounding this
action.
2. I respectfully submit this Affirmation in Support of Plaintiff’s motion which seeks an order:
(1) granting Plaintiff, YEHUDA SOUSSAN, Summary Judgment on the issue of liability,
pursuant to CPLR § 3212; (2) striking Defendants’ affirmative defenses of culpable
conduct, contributory negligence, comparative negligence and/or assumption of risk as
Plaintiff passenger did not cause or contribute to the happening of the subject accident,
and; (3) for such other and further relief as the Court deems necessary and proper.
PRELIMINARY STATEMENT
3. On February 1, 2020, a motor vehicle owned and operated by Defendants, ENERGY
TRUCKING LLC. and JUAN DEPENA, rear-ended a motor vehicle operated by Plaintiff,
BORIS SOFIEV, and occupied by Plaintiff, YEHUDA SOUSSAN, as Plaintiffs were
traveling westbound on the Long Island Expressway, at or near its intersection with
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Junction Boulevard, Queens, New York. As a result of the subject incident, Plaintiff,
YEHUDA SOUSSAN, sustained serious and permanent personal injuries.
4. As demonstrated herein, Plaintiff passenger, YEHUDA SOUSSAN, is entitled to summary
judgment on the issue of liability as a matter of law. Plaintiff further submits that the court
should strike Defendants’ affirmative defenses of culpable conduct, contributory
negligence, comparative negligence and/or assumption of risk as to Plaintiff passenger as
Plaintiff did not cause or contribute to the happening of the subject rear-end accident.
PROCEDURAL HISTORY
5. On November 18, 2020, Plaintiffs filed their Summons and Verified Complaint in Supreme
Court, Kings County. See Plaintiffs’ Summons and Verified Complaint, annexed
hereto as Plaintiff’s, YEHUDA SOUSSAN, “Exhibit A.”
6. On or about January 19, 2021, Defendants interposed their Verified Answer. See
Defendants’ Verified Answer, annexed hereto as Plaintiff’s, YEHUDA SOUSSAN,
“Exhibit B.” Defendants admit that at the time of the accident, Defendant, JUAN
DEPENA, was operating a vehicle owned by Defendant, ENERGY TRUCK LLC., within
the scope of his employment with Defendant, ENERGY TRUCK LLC. See Plaintiff’s,
YEHUDA SOUSSAN, “Exhibit A,” at paragraphs “16” and “18” and Plaintiff’s,
YEHUDA SOUSSAN, “Exhibit B.”
7. Plaintiffs’ Note of Issue and Certificate of Readiness (“NOI”) is currently due February 1,
2022; as such, the instant motion is timely.
FACTS
8. On February 1, 2020, at approximately 6:20 p.m., Plaintiff, YEHUDA SOUSSAN, was
involved in a motor vehicle accident. See Certified Amended MV104, annexed hereto
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as Plaintiff’s, YEHUDA SOUSSAN, “Exhibit C,” and Affidavit of Plaintiff, YEHUDA
SOUSSAN, in Support of Plaintiff’s, YEHUDA SOUSSAN, Motion for Summary
Judgment, annexed hereto as Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at
paragraph “2.”
9. The accident occurred on the westbound Long Island Expressway, at or near its intersection
with Junction Boulevard, Queens, New York. See Plaintiff’s, YEHUDA SOUSSAN,
“Exhibit D,” at paragraph “3.”
10. At the location of the accident, the westbound Long Island Expressway is a two-way
highway with three (3) lanes for moving traffic in each direction. See Plaintiff’s,
YEHUDA SOUSSAN, “Exhibit D,” at paragraph “4.”
11. At the time of the accident, Plaintiff, YEHUDA SOUSAN, was a passenger in a 2016
Nissan, bearing New York license plate T785878C, operated by Plaintiff, BORIS SOFIEV.
See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at paragraph “5.”
12. While traveling within the right lane of the westbound Long Island Expressway, Queens,
New York, a 2018 HEIL, bearing New York license plate BH96419, owned and operated
by Defendants, ENERGY TRUCKING LLC and JUAN DEPENA, rear-ended the vehicle
operated by Plaintiff, BORIS SOFIEV, and occupied by Plaintiff, YEHUDA SOUSSAN.
See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at paragraph “6.”
13. The front of Defendants’ vehicle struck the rear of vehicle occupied by Plaintiff, YEHUDA
SOUSSAN. The rear-end impact was heavy and strong. See Plaintiff’s, YEHUDA
SOUSSAN, “Exhibit D,” at paragraph “7.”
14. As a result of the heavy rear-end impact, Plaintiff’s, YEHUDA SOUSSAN, body was
violently jolted and thrown inside the vehicle. See Plaintiff’s, YEHUDA SOUSSAN,
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“Exhibit D,” at paragraph “8.”
15. At the time of the accident, Plaintiff, YEHUDA SOUSSAN, was wearing his seat belt. See
Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at paragraph “9.”
16. At the time of the accident, the weather was clear and the road was dry. See Plaintiff’s,
YEHUDA SOUSSAN, “Exhibit D,” at paragraph “10.”
17. As a result of the accident, Plaintiff, YEHUDA SOUSSAN, sustained serious and
permanent personal injuries. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at
paragraph “11.”
18. Plaintiff did not cause or contribute to this accident as Plaintiff was an innocent passenger
in Plaintiff’s, BORIS SOFIEV, vehicle, when said vehicle was rear-ended by a motor
vehicle owned and operated by Defendants, ENERGY TRUCKING LLC and JUAN
DEPENA. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at paragraph “12.”
19. Plaintiff, YEHUDA SOUSSAN, respectfully submits that he has satisfied his prima facie
entitlement to summary judgment on the issue of liability as a matter of law.
20. Plaintiff, YEHUDA SOUSSAN, further submits that this court should issue an order
striking Defendants’ affirmative defenses of culpable conduct, contributory negligence
and/or assumption of risk as to Plaintiff passenger as Plaintiff did not cause or contribute
to the happening of the subject rear-end accident. The legal basis for Plaintiff’s contentions
is set forth below in the argument section.
GENERAL PRINCIPLES GOVERNING SUMMARY JUDGMENT
21. Pursuant to CPLR §3212, Summary Judgment is appropriate where there are no genuine
issues of material fact to be resolved at trial. Summary judgment will generally be granted
where, upon the evidence submitted, the cause of action or defense has been established
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sufficiently to warrant the Court as a matter of law in directing judgment in favor of any
party. [N.Y. Civ. Prac. L. & R. 3212 (McKinney 1999)]. Summary Judgment is designed
to expedite all civil cases by eliminating from the trial calendar claims which can be
properly resolved as a matter of law. Andre v. Pomeroy, 35 NY2d 361 (1974). An
unfounded reluctance to employ the remedy serves only to swell trial calendars and to deny
to other litigants the right to have their claims promptly adjudicated. Id.; Gibbons v.
Hantman, 58 AD2d 108 (2d Dept 1977).
22. A party moving for summary judgment must make a prima facie showing of entitlement
to judgment as a matter of law by tendering sufficient evidence, in admissible form, to
eliminate all material issues of fact. Gilbert Frank Corp v. Federal Insurance Co., 70 NY2d
966 (1988); Winegrad v. New York University Medical Center, 64 NY2d 851 (1985);
Zuckerman v. City of New York, 49 NY2d 557 (1980). If a prima facie showing is made,
the burden shifts to the non-movant to produce evidentiary proof, in admissible form, to
establish the existence of a material issue of fact. Zuckerman v. City of New York, 49
NY2d 557 (1980).
23. “A plaintiff in a negligence action moving for summary judgment on the issue of liability
must establish, prima facie, that the defendant breached a duty owed to the plaintiff and
that the defendant's negligence was a proximate cause of the alleged injuries” (emph.
added) Tyganash v Auto Fleet Mall Mgt., Inc., 163 AD3d 1033 (2d Dept 2018); Rodriguez
v City of New York, 31 NY3d 312 (2018).
24. The burden is on a party opposing Summary Judgment to produce evidentiary proof in
admissible form sufficient to require a trial of material questions of fact on which the
opposing claim rests. Gilbert Frank Corp. v. Federal Insurance Co., 70 NY2d 966 (1988);
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Zuckerman v. City of New York, 49 NY2d 557 (1980). Bald conclusory assertions, general
allegations of negligence, expressions of hope or unsubstantiated allegations or assertions
are all insufficient to defeat a motion for Summary Judgment. Spaulding v. Benenati, 57
NY2d 418 (1982); Del Giacco v. Noteworthy Co., 175 AD2d 516 (3d Dept 1991);
Rosenberg v. Rockville Centre Soccer Club, 166 AD2d 570 (2d Dept 1990).
25. In Rebecchi v. Whitmore, 172 A.D.2d 600 (2d Dept 1991), the Appellate Division reversed
the trial court’s denial of the plaintiff’s motion for partial summary judgment stating that
the trial court’s duty in deciding a summary judgment motion is not to resolve issues of
fact or determine matters of credibility, but to determine whether such issues exist.
26. The question of whether Plaintiff might be comparatively negligent is immaterial as to
whether Plaintiff is entitled to summary judgment on liability. In the recent case of
Rodriguez v. City of New York, 31 NY3d 312 (2018), the Court of Appeals held that a
plaintiff “does not bear [the] burden” of establishing freedom from comparative negligence
in order to obtain partial summary judgment in a negligence case. In particular, because
the plaintiff’s culpable conduct may be claimed “in diminution of damages” under CPLR
§ 1412, but is not a complete defense of the action, “[placing the burden on the plaintiff to
show an absence of comparative fault is inconsistent with the plain language of CPLR §
1412.” Id. at 3-4 (“a plaintiff’s comparative negligence is no longer a complete defense to
be pleaded and proven by the plaintiff, but rather is only relevant to the mitigation of
plaintiff’s damages and should be pleaded and proven by the defendant”). Thus, in sum,
“to be entitled to partial summary judgment 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 6; Edgerton v. City on New York, 160 AD3d 809 (2d Dept 2018);
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Odetalla v Rodriguez, 165 AD3d 826 (2d Dept 2018); Outar v Sumner, 164 AD3d 1356
(2d Dept 2018); Wray v Galella, 172 AD3d 1446 (2d Dept 2019).
ARGUMENT
POINT I
PLAINTIFF, YEHUDA SOUSSAN, SUBMITS SUFFICIENT EVIDENCE TO SATISFY
HIS PRIMA FACIE BURDEN AND DEMONSTRATE ENTITLEMENT TO SUMMARY
JUDGMENT ON THE ISSUE OF LIABILITY AS A MATTER OF LAW
27. New York CPLR § 3212(b) clearly states that “a motion for summary judgment shall be
supported by affidavit, by a copy of the pleadings and by other available proof, such as
deposition and written admissions.” In the Matter of Chu Man Woo v. Qiong Yun Xi, 106
AD3d 818 (2d Dept 2013); Yeargans v. Yeargans, 24 AD2d 280 (1st Dept 1965).
28. Here, Plaintiff, YEHUDA SOUSSAN, submits, inter alia, the pleadings, a certified
MV104, and his sworn affidavit to demonstrate his prima facie entitlement to summary
judgment on the issue of liability as a matter of law. Plaintiff, YEHUDA SOUSSAN,
affirms that on February 1, 2020, at approximately 6:20 p.m., Plaintiff was a passenger in
a vehicle operated by Plaintiff, BORIS SOFIEV, on the westbound Long Island
Expressway, Queens, New York, when said vehicle was rear-ended by a vehicle owned
and operated by Defendants herein. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D.”
29. Plaintiff, YEHUDA SOUSSAN, respectfully submits that he has satisfied his prima facie
entitlement to summary judgment on the issue of liability as a matter of law. As such,
Defendants must set forth a legally sufficient, non-negligent excuse for rear-ending
Plaintiff’s vehicle in order to survive summary judgment herein.
30. Plaintiff, YEHUDA SOUSSAN, further submits that the court should enter an order
striking Defendants’ affirmative defenses of culpable conduct, contributory negligence
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and/or assumption of risk as to Plaintiff passenger if Defendants fail to demonstrate,
through admissible evidence, that Plaintiff passenger caused or contributed to the
happening of the subject rear-end accident.
POINT II
DEFENDANTS ARE NEGLIGENT AS A MATTER OF LAW FOR VIOLATING THE
APPLICABLE PROVISIONS OF THE VEHICLE AND TRAFFIC LAW, FOR FAILING
TO SEE WHAT THERE WAS TO BE SEEN, AND FOR REAR-ENDING THE
VEHICLE OCCUPIED BY PLAINTIFF, YEHUDA SOUSSAN
31. The Supreme Court, Appellate Division, held in Adobea v. Junel, 114 AD3d 818 (2d Dept
2014), that “A violation of the Vehicle and Traffic Law constitutes negligence as a matter
of law.” (emph. added) Vainer v. DiSalvo, 79 AD3d 1023, 1024 (2d Dept 2010); Jones v.
Radeker, 32 AD3d 494, 496 (2d Dept 2006); Estate of Cook v Gomez, 138 AD3d
675 (2016); Marcel v Sanders, 123 AD3d 1097 (2d Dept 2014), and; Botero v Erraez, 289
AD2d 274 (2d Dept 2001)
32. Defendants are negligent as a matter of law for violating Vehicle & Traffic Law (“VTL”)
§§§ 1110, 1129(a) and 1180(a).
33. VTL §1110 states:
(a) Every person shall obey the instructions of any official traffic-control
device applicable to him placed in accordance with the provisions of this
chapter, unless otherwise directed by a traffic or police officer, subject to
the exceptions granted the driver of an authorized emergency vehicle in
this title.
34. VTL §1129(a) recognizes the common sense principle that sufficient space should be
maintained between a preceding vehicle and a following vehicle in order to avoid collision.
VTL § 1129(a) states:
The 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 and the condition of the highway.
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35. VTL §1180(a) recognizes the common sense principle that speed of vehicles must be
constrained by the weather and traffic conditions then prevailing. VTL §1180(a) states:
No person shall drive a vehicle at a speed greater than is reasonable and
prudent under the conditions and having regard to the actual and potential
hazards then existing.
36. It is also well established within the Appellate Division that a failure to see that which is
in plain view, constitutes negligence as a matter of law. See Montero v. Henriquez, 133
A.D.2d 677 (2d Dept 1987). In Montero, the Second Department set aside a jury verdict in
favor of Defendant on the rationale that if the parked Defendant did not see the other
Defendant’s vehicle before pulling out, or the driving Defendant did not see the parked
Defendant, there exists evidence of negligence on the Defendants’ part as a matter of law.
See Id at 678. With regard to a driver’s duty to keep a lookout, the Appellate Division
stated:
“Each of [the drivers] was under a duty to maintain a reasonably safe rate
of speed, to have his automobile under reasonable control and to keep a
proper lookout, under the circumstances then existing, to see and be aware
of what was in his view, and to use reasonable care to avoid an accident. A
driver is charged with a duty to see that which under the facts and
circumstances he should have seen by the proper use of his senses”.
Id. The Second Department held: “In the instant case the jury was presented
with two conflicting accounts of the accident, i.e., either Defendant
Henriquez failed to see the stationary car as it clearly protruded beyond the
sand pile, or Defendant Mark R. D’Angelo, while inching out from behind
the sand pile, failed to see Henriquez’s clearly visible car. Whichever
version of the accident the jury chose to believe, it is obvious that the
accident was not an unavoidable one and that at least one of Defendants was
negligent (see, Terrell v. Kissel, 116 A.D.2d 637 (2d Dept 1986).
Accordingly, under the circumstances of this case, we find the verdict in
favor of all Defendants on the issue of liability to be against the weight of
evidence”.
Id. Thus, a Defendant’s failure to see that which is there to be seen is
evidence of negligence as a matter of law. Id.; Finkel v. Benoit, 211 A.D.2d
749 (2d Dept 1995).
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37. Here, Defendants are in violation of VTL §§§ 1110, 1129(a) and 1180(a) for failing to
maintain proper speed and distance behind the vehicle occupied by Plaintiff, YEHUDA
SOUSSAN, for failing to see what was there to be seen in plain view, namely the vehicle
occupied by Plaintiff, YEHUDA SOUSSAN, and for rear-ending the vehicle occupied by
YEHUDA SOUSSAN.
38. Based on the foregoing, Defendants are negligent as a matter of law for violating the
applicable portions of the VTL cited herein, and Defendants’ aforementioned negligence is
the sole proximate cause of the subject rear-end accident. (emph. added) As such, Plaintiff,
YEHUDA SOUSSAN, should be granted summary judgment on the issue of liability as a
matter of law if Defendants fail to set forth a legally sufficient, non-negligent excuse for
rear-ending the vehicle occupied by Plaintiff, YEHUDA SOUSSAN.
39. Plaintiff, YEHUDA SOUSSAN, further submits that the court should enter an order
striking Defendants’ affirmative defenses of culpable conduct, contributory negligence
and/or assumption of risk as to Plaintiff passenger if Defendants fail to demonstrate, though
admissible evidence, that Plaintiff passenger caused or contributed to the happening of the
subject rear-end accident.
POINT III
PLAINTIFF PASSENGER IS ENTITLED TO SUMMARY JUDGMENT ON THE ISSUE
OF LIABILITY
40. It is well-established that cases involving innocent passengers are ripe for Summary
Judgment on the issue of liability. See, Martinez v. Novin, 303 A.D.2d 653, 757 N.Y.S.2d
317 (2d Dept. 2003); Garcia v. Tri-County Ambulette Serv., 282 A.D.2d 206, 723 N.Y.S.2d
163 (1st Dept. 2001); Wolfson v. Milillo, 262 A.D.2d 636, 692 N.Y.S.2d 697 (2d Dept.
1999). For an innocent passenger to prevail on Summary Judgment, said passenger need
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only show that they are free from liability. See, Martinez, supra; Garcia, supra; and
Wolfson, supra.
41. The Second Department has held that “…the right of an innocent passenger to summary
judgment [is not] in any way restricted by questions of comparative negligence which may
exist as between…” two defendant drivers. See, Silberman v. Surrey Cadillac Limousine
Serv., 109 A.D.2d 833, 486 N.Y.S.2d 357 (2d Dept. 1985); see also, Pearsall v. Saracco,
305 A.D.2d 650, 759 N.Y.S.2d 886 (2d Dept. 2003).
42. Here, Plaintiff, YEHUDA SOUSSAN, submits, inter alia, the pleadings, a certified
MV104, and his sworn affidavit to demonstrate his prima facie entitlement to summary
judgment on the issue of liability as a matter of law. Plaintiff, YEHUDA SOUSSAN,
affirms that on February 1, 2020, at approximately 6:20 p.m., Plaintiff was a passenger in
a vehicle operated by Plaintiff, BORIS SOFIEV, on the westbound Long Island
Expressway, Queens, New York, when said vehicle was rear-ended by a vehicle owned
and operated by Defendants herein. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D.”
43. The admissible evidence submitted herein demonstrates that Plaintiff, YEHUDA SOUSSAN,
was an innocent passenger who did not cause or contribute to the happening of the accident.
See Plaintiff’s, YEHUDA SOUSSAN, Exhibit “D.”
44. As such, Plaintiff passenger should be awarded summary judgment on the issue of liability as
a matter of law even if the court determines that Defendants, ENERGY TRUCKING LLC.
and JUAN DEPENA, and Plaintiff, BORIS SOFIEV, are each partially responsible and/or
liable for the happening of the subject accident.
45. Plaintiff, YEUDA SOUSSAN, further submits that the court should enter an order striking
Defendants’ affirmative defenses of culpable conduct, contributory negligence,
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comparative negligence and/or assumption of risk as to Plaintiff passenger if Defendants
fail to demonstrate, though admissible evidence, that Plaintiff passenger caused or
contributed to the happening of the subject rear-end accident.
POINT IV
DEFENDANTS DO NOT HAVE A NON-NEGLIGENT EXCUSE
46. A driver following another vehicle is under a duty to maintain a safe distance between the
two vehicles. [(McKinney’s Vehicle and Traffic Law 1129(a)]. The failure to maintain a
safe distance, in the absence of an adequate, non-negligent explanation, constitutes
negligence on the part of the following driver as a matter of law. See Rebecchi v.
Whitmore, 172 A.D.2d 600 (2d Dept 1991); Siberman v. Surry Cadillac Limousine
Service, Inc., 109 A.D.2d 833 (2d Dept 1985).
47. The Appellate Division has held in numerous cases that absent some excuse by Defendant,
Plaintiff will be entitled to Summary Judgment if Plaintiff’s vehicle is hit in the rear by
Defendant. Florez v. Diaz, 243 A.D.2d 607 (2d Dept 1997); Kastanis v. Del Fuoco, 241
A.D.2d 541 (2d Dept 1997) where the Appellate Division held that the Supreme Court
correctly determined that the rear-end vehicular collision which occurred in this case
created an inference of negligence and a prima facie case of liability against the operator
of the tractor-trailer which struck the Plaintiff’s vehicle, imposing a duty of explanation
upon the operator of the tractor-trailer; Barile V. Lazzarini, 222 A.D.2d 635 (2d Dept
1995); Pincus v. Cohen, 198 A.D.2d 405 (2d Dept 1993). Inasmuch as the operator of the
offending vehicle failed to come forward with an adequate, no negligent explanation. See
Gambino v. City of New York, 205 A.D.2d 583 (2d Dept 1994), partial summary judgment
was properly granted in favor of Plaintiffs; Rios v. Bryant, 234 A.D.2d 441 (2d Dept 1996)
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where the driver of a vehicle stopped in the middle lane of the highway while attempting
to change lanes was entitled to Summary Judgment since the sole proximate cause of the
accident was the actions of the vehicle that struck his vehicle in the rear. Ribowksy v.
Kashinsky, 234 A.D.2d 353 (2d Dept 1996); Maxwell v. Lobenburg, 227 A.D.2d 598 (2d
Dept 1996); Corbly v. Butler 226 A.D.2d 418 (2d Dept 1996); Cohen v. Terranella, 112
A.D.2d 264 (2d Dept 1995).
48. Here, Defendant driver, JUAN DEPENA, is negligent as a matter of law for violating the
applicable sections of the VTL cited herein and for rear-ending the vehicle occupied by
Plaintiff, YEHUDA SOUSSAN. Defendant failed to maintain a safe distance behind the
vehicle occupied by Plaintiff, YEHUDA SOUSSAN, failed to have his vehicle under
proper speed and control, and failed to observe the vehicle occupied by Plaintiff YEHUDA
SOUSSAN, which was in plain view, prior to rear-ending the vehicle occupied by Plaintiff,
YEHUDA SOUSSAN. Defendant’s aforementioned negligent is the sole proximate cause
of the subject rear-end accident.
49. As Plaintiff, YEHUDA SOUSSAN, has satisfied his initial prima facie entitlement to
summary judgment on the issue of liability, Defendants must submit sufficient admissible
evidence to raise a triable issue of fact on liability to survive summary judgment.
50. Plaintiff, YEHUDA SOUSSAN, respectfully submits that he is entitled to summary
judgment on the issue of liability as Defendants do not have a legally sufficient, non-
negligent excuse for rear-ending the vehicle occupied by Plaintiff, YEHUDA SOUSSAN.
51. Plaintiff, YEHUDA SOUSSAN, further submits that the court should enter an order
striking Defendants’ affirmative defenses of culpable conduct, contributory negligence
and/or assumption of risk as Plaintiff passenger did not cause or contribute to the happening
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of the subject rear-end accident.
POINT V
THE COURT SHOULD STRIKE DEFENDANTS’ AFFIRMATIVE DEFENSES OF
CULPABLE CONDUCT, CONTRIBUTORY NEGLIGENCE AND/OR ASSUMPTION
OF RISK AS PLAINTIFF PASSENGER, YEHUDA SOUSSAN, DID NOT CAUSE OR
CONTRIBUTE TO THE HAPPENING OF THE SUBJECT REAR-END ACCIDENT
52. As a threshold matter, the question of whether Plaintiff might be comparatively negligent
(which in any event there is no evidence of) is immaterial as to whether he is entitled to
summary judgment on liability. In the recent case of Rodriguez v. City of New York, 2018
NY Slip Op 02287 (2018), the Court of Appeals held that a plaintiff “does not bear [the]
burden” of establishing freedom from comparative negligence in order to obtain partial
summary judgment in a negligence case. In particular, because the plaintiff’s culpable
conduct may be claimed “in diminution of damages” under CPLR § 1412, but is not a
complete defense of the action, “[placing the burden on the plaintiff to show an absence of
comparative fault is inconsistent with the plain language of CPLR § 1412.” Id. at 3-4 (“a
plaintiff’s comparative negligence is no longer a complete defense to be pleaded and
proven by the plaintiff, but rather is only relevant to the mitigation of plaintiff’s damages
and should be pleaded and proven by the defendant”). Thus, in sum, “to be entitled to
partial summary judgment 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 6; Edgerton v. City on New York, 160 AD3d 809 (2d Dept 2018).
53. Although Plaintiff in moving for summary judgment does not bear the burden of
establishing the absence of his or her own comparative fault, the issue of comparative fault
can be decided in the context of a summary judgment motion where, as here, Plaintiff
moves to strike the affirmative defense. This is supported by the Appellate Division’s
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recent decisions.
54. The holding by the Second Department in Wray v Galella, 172 AD3d 1446 (2d Dept 2019),
supports a finding that the court should dismiss the affirmative defenses raised by
defendant as to plaintiff’s comparative negligence, as contained in defendants’ answer. To
quote the court,
“To be entitled to partial summary judgment a plaintiff does not bear the .
. . burden of establishing . . . the absence of his or her own comparative
fault” Rodriguez v City of New York, 31 NY3d at 324-325 (2018); Odetalla
v Rodriguez, 165 AD3d 826, 826 (2d Dept 2018); Outar v Sumner, 164
AD3d 1356, 1356 (2d Dept 2018); Edgerton v City of New York, 160 AD3d
809, 811 (2d Dept 2018)]. Even though a plaintiff is no longer required to
establish his or her freedom from comparative negligence, the issue of a
plaintiff's comparative negligence may be decided in the context of a
summary judgment motion where, as here, the plaintiff moved for summary
judgment dismissing a defendant's affirmative defense of comparative
negligence. (emph. added) Poon v Nisanov, 162 AD3d 804, 808 (2d Dept
2018). Id.
55. This was confirmed by the Second Department in Hai Xiao v Martinez, 185 A.D.3d 1014
(2d Dept 2020), which stemmed from a pedestrian knockdown. The lower court denied
plaintiff’s motion for summary judgment and to strike the affirmative defense alleging
comparative negligence. The Second Department reversed, holding that:
A plaintiff in a negligence action moving for summary judgment on the
issue of liability must establish, prima facie, that the defendant breached a
duty owed to the plaintiff and that the defendant’s negligence was a
proximate cause of the alleged injuries. Tsyganash v Auto Mall Fleet Mgt.,
Inc., 163 AD3d 1033, 1033-1034 (2d Dept 2018); Rodriguez v City of New
York, 31 NY3d 312 (2018). “To be entitled to partial summary judgment a
plaintiff does not bear the . . . burden of establishing . . . the absence of his
or her own comparative fault” Rodriguez v City of New York, 31 NY3d at
324-325 (2018). Even though a plaintiff is no longer required to establish
his or her freedom from comparative negligence to be entitled to summary
judgment on the issue of liability, the issue of a plaintiff's comparative
negligence may be decided in the context of a summary judgment motion
where, as here, the plaintiff moved for summary judgment dismissing a
defendant's affirmative defense of comparative negligence. (emph. added)
Higashi v M & R Scarsdale Rest., LLC, 176 AD3d 788, 789 (2d Dept 2019),
15 of 19
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NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021
and; Wray v Galella, 172 AD3d 1446, 1447 (2d Dept 2019).
Here, the plaintiff established her prima facie entitlement to judgment as a
matter of law on the issue of liability by submitting, inter alia, her own
affidavit, which demonstrated that she was walking within a crosswalk with
the pedestrian signal in her favor when Martinez, who was attempting to
make a left turn, failed to yield the right-of-way and struck her. Rodriguez
v City of New York, 31 NY3d 312 (2018); Gaston v Vertsberger, 176 AD3d
919, (2d Dept 2019); Rodriguez-Garcia v Bobby's Bus Co., Inc., 175 AD3d
631, 632 (2d Dept 2019); Lazarre v Gragston, 164 AD3d 574, 575 (2d Dept
2018). The plaintiff's affidavit was also sufficient to establish, prima facie,
that she was not at fault in the happening of the accident as it demonstrated
that she exercised due to
Preview
FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No.: 523027/2020 -------------------------------------------------------------------------X BORIS SOFIEV and YEHUDA SOUSSAN, AFFIRMATION IN Plaintiffs, SUPPORT OF PLAINTIFF’S MOTION -against- FOR SUMMARY JUDGMENT JUAN DEPENA and ENERGY TRUCKING LLC., Defendants. -------------------------------------------------------------------------X Stephen J. Liakas, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, pursuant to CPLR § 2106, duly affirms the truth of the following: 1. I am a partner with the law firm, LIAKAS LAW, P.C., attorneys for Plaintiff, YEHUDA SOUSSAN, and as such I am fully familiar with the facts and circumstances surrounding this action. 2. I respectfully submit this Affirmation in Support of Plaintiff’s motion which seeks an order: (1) granting Plaintiff, YEHUDA SOUSSAN, Summary Judgment on the issue of liability, pursuant to CPLR § 3212; (2) striking Defendants’ affirmative defenses of culpable conduct, contributory negligence, comparative negligence and/or assumption of risk as Plaintiff passenger did not cause or contribute to the happening of the subject accident, and; (3) for such other and further relief as the Court deems necessary and proper. PRELIMINARY STATEMENT 3. On February 1, 2020, a motor vehicle owned and operated by Defendants, ENERGY TRUCKING LLC. and JUAN DEPENA, rear-ended a motor vehicle operated by Plaintiff, BORIS SOFIEV, and occupied by Plaintiff, YEHUDA SOUSSAN, as Plaintiffs were traveling westbound on the Long Island Expressway, at or near its intersection with 1 of 19 FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 Junction Boulevard, Queens, New York. As a result of the subject incident, Plaintiff, YEHUDA SOUSSAN, sustained serious and permanent personal injuries. 4. As demonstrated herein, Plaintiff passenger, YEHUDA SOUSSAN, is entitled to summary judgment on the issue of liability as a matter of law. Plaintiff further submits that the court should strike Defendants’ affirmative defenses of culpable conduct, contributory negligence, comparative negligence and/or assumption of risk as to Plaintiff passenger as Plaintiff did not cause or contribute to the happening of the subject rear-end accident. PROCEDURAL HISTORY 5. On November 18, 2020, Plaintiffs filed their Summons and Verified Complaint in Supreme Court, Kings County. See Plaintiffs’ Summons and Verified Complaint, annexed hereto as Plaintiff’s, YEHUDA SOUSSAN, “Exhibit A.” 6. On or about January 19, 2021, Defendants interposed their Verified Answer. See Defendants’ Verified Answer, annexed hereto as Plaintiff’s, YEHUDA SOUSSAN, “Exhibit B.” Defendants admit that at the time of the accident, Defendant, JUAN DEPENA, was operating a vehicle owned by Defendant, ENERGY TRUCK LLC., within the scope of his employment with Defendant, ENERGY TRUCK LLC. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit A,” at paragraphs “16” and “18” and Plaintiff’s, YEHUDA SOUSSAN, “Exhibit B.” 7. Plaintiffs’ Note of Issue and Certificate of Readiness (“NOI”) is currently due February 1, 2022; as such, the instant motion is timely. FACTS 8. On February 1, 2020, at approximately 6:20 p.m., Plaintiff, YEHUDA SOUSSAN, was involved in a motor vehicle accident. See Certified Amended MV104, annexed hereto 2 of 19 FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 as Plaintiff’s, YEHUDA SOUSSAN, “Exhibit C,” and Affidavit of Plaintiff, YEHUDA SOUSSAN, in Support of Plaintiff’s, YEHUDA SOUSSAN, Motion for Summary Judgment, annexed hereto as Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at paragraph “2.” 9. The accident occurred on the westbound Long Island Expressway, at or near its intersection with Junction Boulevard, Queens, New York. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at paragraph “3.” 10. At the location of the accident, the westbound Long Island Expressway is a two-way highway with three (3) lanes for moving traffic in each direction. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at paragraph “4.” 11. At the time of the accident, Plaintiff, YEHUDA SOUSAN, was a passenger in a 2016 Nissan, bearing New York license plate T785878C, operated by Plaintiff, BORIS SOFIEV. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at paragraph “5.” 12. While traveling within the right lane of the westbound Long Island Expressway, Queens, New York, a 2018 HEIL, bearing New York license plate BH96419, owned and operated by Defendants, ENERGY TRUCKING LLC and JUAN DEPENA, rear-ended the vehicle operated by Plaintiff, BORIS SOFIEV, and occupied by Plaintiff, YEHUDA SOUSSAN. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at paragraph “6.” 13. The front of Defendants’ vehicle struck the rear of vehicle occupied by Plaintiff, YEHUDA SOUSSAN. The rear-end impact was heavy and strong. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at paragraph “7.” 14. As a result of the heavy rear-end impact, Plaintiff’s, YEHUDA SOUSSAN, body was violently jolted and thrown inside the vehicle. See Plaintiff’s, YEHUDA SOUSSAN, 3 of 19 FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 “Exhibit D,” at paragraph “8.” 15. At the time of the accident, Plaintiff, YEHUDA SOUSSAN, was wearing his seat belt. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at paragraph “9.” 16. At the time of the accident, the weather was clear and the road was dry. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at paragraph “10.” 17. As a result of the accident, Plaintiff, YEHUDA SOUSSAN, sustained serious and permanent personal injuries. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at paragraph “11.” 18. Plaintiff did not cause or contribute to this accident as Plaintiff was an innocent passenger in Plaintiff’s, BORIS SOFIEV, vehicle, when said vehicle was rear-ended by a motor vehicle owned and operated by Defendants, ENERGY TRUCKING LLC and JUAN DEPENA. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D,” at paragraph “12.” 19. Plaintiff, YEHUDA SOUSSAN, respectfully submits that he has satisfied his prima facie entitlement to summary judgment on the issue of liability as a matter of law. 20. Plaintiff, YEHUDA SOUSSAN, further submits that this court should issue an order striking Defendants’ affirmative defenses of culpable conduct, contributory negligence and/or assumption of risk as to Plaintiff passenger as Plaintiff did not cause or contribute to the happening of the subject rear-end accident. The legal basis for Plaintiff’s contentions is set forth below in the argument section. GENERAL PRINCIPLES GOVERNING SUMMARY JUDGMENT 21. Pursuant to CPLR §3212, Summary Judgment is appropriate where there are no genuine issues of material fact to be resolved at trial. Summary judgment will generally be granted where, upon the evidence submitted, the cause of action or defense has been established 4 of 19 FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 sufficiently to warrant the Court as a matter of law in directing judgment in favor of any party. [N.Y. Civ. Prac. L. & R. 3212 (McKinney 1999)]. Summary Judgment is designed to expedite all civil cases by eliminating from the trial calendar claims which can be properly resolved as a matter of law. Andre v. Pomeroy, 35 NY2d 361 (1974). An unfounded reluctance to employ the remedy serves only to swell trial calendars and to deny to other litigants the right to have their claims promptly adjudicated. Id.; Gibbons v. Hantman, 58 AD2d 108 (2d Dept 1977). 22. A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence, in admissible form, to eliminate all material issues of fact. Gilbert Frank Corp v. Federal Insurance Co., 70 NY2d 966 (1988); Winegrad v. New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v. City of New York, 49 NY2d 557 (1980). If a prima facie showing is made, the burden shifts to the non-movant to produce evidentiary proof, in admissible form, to establish the existence of a material issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). 23. “A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries” (emph. added) Tyganash v Auto Fleet Mall Mgt., Inc., 163 AD3d 1033 (2d Dept 2018); Rodriguez v City of New York, 31 NY3d 312 (2018). 24. The burden is on a party opposing Summary Judgment to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests. Gilbert Frank Corp. v. Federal Insurance Co., 70 NY2d 966 (1988); 5 of 19 FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 Zuckerman v. City of New York, 49 NY2d 557 (1980). Bald conclusory assertions, general allegations of negligence, expressions of hope or unsubstantiated allegations or assertions are all insufficient to defeat a motion for Summary Judgment. Spaulding v. Benenati, 57 NY2d 418 (1982); Del Giacco v. Noteworthy Co., 175 AD2d 516 (3d Dept 1991); Rosenberg v. Rockville Centre Soccer Club, 166 AD2d 570 (2d Dept 1990). 25. In Rebecchi v. Whitmore, 172 A.D.2d 600 (2d Dept 1991), the Appellate Division reversed the trial court’s denial of the plaintiff’s motion for partial summary judgment stating that the trial court’s duty in deciding a summary judgment motion is not to resolve issues of fact or determine matters of credibility, but to determine whether such issues exist. 26. The question of whether Plaintiff might be comparatively negligent is immaterial as to whether Plaintiff is entitled to summary judgment on liability. In the recent case of Rodriguez v. City of New York, 31 NY3d 312 (2018), the Court of Appeals held that a plaintiff “does not bear [the] burden” of establishing freedom from comparative negligence in order to obtain partial summary judgment in a negligence case. In particular, because the plaintiff’s culpable conduct may be claimed “in diminution of damages” under CPLR § 1412, but is not a complete defense of the action, “[placing the burden on the plaintiff to show an absence of comparative fault is inconsistent with the plain language of CPLR § 1412.” Id. at 3-4 (“a plaintiff’s comparative negligence is no longer a complete defense to be pleaded and proven by the plaintiff, but rather is only relevant to the mitigation of plaintiff’s damages and should be pleaded and proven by the defendant”). Thus, in sum, “to be entitled to partial summary judgment 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 6; Edgerton v. City on New York, 160 AD3d 809 (2d Dept 2018); 6 of 19 FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 Odetalla v Rodriguez, 165 AD3d 826 (2d Dept 2018); Outar v Sumner, 164 AD3d 1356 (2d Dept 2018); Wray v Galella, 172 AD3d 1446 (2d Dept 2019). ARGUMENT POINT I PLAINTIFF, YEHUDA SOUSSAN, SUBMITS SUFFICIENT EVIDENCE TO SATISFY HIS PRIMA FACIE BURDEN AND DEMONSTRATE ENTITLEMENT TO SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY AS A MATTER OF LAW 27. New York CPLR § 3212(b) clearly states that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as deposition and written admissions.” In the Matter of Chu Man Woo v. Qiong Yun Xi, 106 AD3d 818 (2d Dept 2013); Yeargans v. Yeargans, 24 AD2d 280 (1st Dept 1965). 28. Here, Plaintiff, YEHUDA SOUSSAN, submits, inter alia, the pleadings, a certified MV104, and his sworn affidavit to demonstrate his prima facie entitlement to summary judgment on the issue of liability as a matter of law. Plaintiff, YEHUDA SOUSSAN, affirms that on February 1, 2020, at approximately 6:20 p.m., Plaintiff was a passenger in a vehicle operated by Plaintiff, BORIS SOFIEV, on the westbound Long Island Expressway, Queens, New York, when said vehicle was rear-ended by a vehicle owned and operated by Defendants herein. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D.” 29. Plaintiff, YEHUDA SOUSSAN, respectfully submits that he has satisfied his prima facie entitlement to summary judgment on the issue of liability as a matter of law. As such, Defendants must set forth a legally sufficient, non-negligent excuse for rear-ending Plaintiff’s vehicle in order to survive summary judgment herein. 30. Plaintiff, YEHUDA SOUSSAN, further submits that the court should enter an order striking Defendants’ affirmative defenses of culpable conduct, contributory negligence 7 of 19 FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 and/or assumption of risk as to Plaintiff passenger if Defendants fail to demonstrate, through admissible evidence, that Plaintiff passenger caused or contributed to the happening of the subject rear-end accident. POINT II DEFENDANTS ARE NEGLIGENT AS A MATTER OF LAW FOR VIOLATING THE APPLICABLE PROVISIONS OF THE VEHICLE AND TRAFFIC LAW, FOR FAILING TO SEE WHAT THERE WAS TO BE SEEN, AND FOR REAR-ENDING THE VEHICLE OCCUPIED BY PLAINTIFF, YEHUDA SOUSSAN 31. The Supreme Court, Appellate Division, held in Adobea v. Junel, 114 AD3d 818 (2d Dept 2014), that “A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law.” (emph. added) Vainer v. DiSalvo, 79 AD3d 1023, 1024 (2d Dept 2010); Jones v. Radeker, 32 AD3d 494, 496 (2d Dept 2006); Estate of Cook v Gomez, 138 AD3d 675 (2016); Marcel v Sanders, 123 AD3d 1097 (2d Dept 2014), and; Botero v Erraez, 289 AD2d 274 (2d Dept 2001) 32. Defendants are negligent as a matter of law for violating Vehicle & Traffic Law (“VTL”) §§§ 1110, 1129(a) and 1180(a). 33. VTL §1110 states: (a) Every person shall obey the instructions of any official traffic-control device applicable to him placed in accordance with the provisions of this chapter, unless otherwise directed by a traffic or police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this title. 34. VTL §1129(a) recognizes the common sense principle that sufficient space should be maintained between a preceding vehicle and a following vehicle in order to avoid collision. VTL § 1129(a) states: The 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 and the condition of the highway. 8 of 19 FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 35. VTL §1180(a) recognizes the common sense principle that speed of vehicles must be constrained by the weather and traffic conditions then prevailing. VTL §1180(a) states: No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. 36. It is also well established within the Appellate Division that a failure to see that which is in plain view, constitutes negligence as a matter of law. See Montero v. Henriquez, 133 A.D.2d 677 (2d Dept 1987). In Montero, the Second Department set aside a jury verdict in favor of Defendant on the rationale that if the parked Defendant did not see the other Defendant’s vehicle before pulling out, or the driving Defendant did not see the parked Defendant, there exists evidence of negligence on the Defendants’ part as a matter of law. See Id at 678. With regard to a driver’s duty to keep a lookout, the Appellate Division stated: “Each of [the drivers] was under a duty to maintain a reasonably safe rate of speed, to have his automobile under reasonable control and to keep a proper lookout, under the circumstances then existing, to see and be aware of what was in his view, and to use reasonable care to avoid an accident. A driver is charged with a duty to see that which under the facts and circumstances he should have seen by the proper use of his senses”. Id. The Second Department held: “In the instant case the jury was presented with two conflicting accounts of the accident, i.e., either Defendant Henriquez failed to see the stationary car as it clearly protruded beyond the sand pile, or Defendant Mark R. D’Angelo, while inching out from behind the sand pile, failed to see Henriquez’s clearly visible car. Whichever version of the accident the jury chose to believe, it is obvious that the accident was not an unavoidable one and that at least one of Defendants was negligent (see, Terrell v. Kissel, 116 A.D.2d 637 (2d Dept 1986). Accordingly, under the circumstances of this case, we find the verdict in favor of all Defendants on the issue of liability to be against the weight of evidence”. Id. Thus, a Defendant’s failure to see that which is there to be seen is evidence of negligence as a matter of law. Id.; Finkel v. Benoit, 211 A.D.2d 749 (2d Dept 1995). 9 of 19 FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 37. Here, Defendants are in violation of VTL §§§ 1110, 1129(a) and 1180(a) for failing to maintain proper speed and distance behind the vehicle occupied by Plaintiff, YEHUDA SOUSSAN, for failing to see what was there to be seen in plain view, namely the vehicle occupied by Plaintiff, YEHUDA SOUSSAN, and for rear-ending the vehicle occupied by YEHUDA SOUSSAN. 38. Based on the foregoing, Defendants are negligent as a matter of law for violating the applicable portions of the VTL cited herein, and Defendants’ aforementioned negligence is the sole proximate cause of the subject rear-end accident. (emph. added) As such, Plaintiff, YEHUDA SOUSSAN, should be granted summary judgment on the issue of liability as a matter of law if Defendants fail to set forth a legally sufficient, non-negligent excuse for rear-ending the vehicle occupied by Plaintiff, YEHUDA SOUSSAN. 39. Plaintiff, YEHUDA SOUSSAN, further submits that the court should enter an order striking Defendants’ affirmative defenses of culpable conduct, contributory negligence and/or assumption of risk as to Plaintiff passenger if Defendants fail to demonstrate, though admissible evidence, that Plaintiff passenger caused or contributed to the happening of the subject rear-end accident. POINT III PLAINTIFF PASSENGER IS ENTITLED TO SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY 40. It is well-established that cases involving innocent passengers are ripe for Summary Judgment on the issue of liability. See, Martinez v. Novin, 303 A.D.2d 653, 757 N.Y.S.2d 317 (2d Dept. 2003); Garcia v. Tri-County Ambulette Serv., 282 A.D.2d 206, 723 N.Y.S.2d 163 (1st Dept. 2001); Wolfson v. Milillo, 262 A.D.2d 636, 692 N.Y.S.2d 697 (2d Dept. 1999). For an innocent passenger to prevail on Summary Judgment, said passenger need 10 of 19 FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 only show that they are free from liability. See, Martinez, supra; Garcia, supra; and Wolfson, supra. 41. The Second Department has held that “…the right of an innocent passenger to summary judgment [is not] in any way restricted by questions of comparative negligence which may exist as between…” two defendant drivers. See, Silberman v. Surrey Cadillac Limousine Serv., 109 A.D.2d 833, 486 N.Y.S.2d 357 (2d Dept. 1985); see also, Pearsall v. Saracco, 305 A.D.2d 650, 759 N.Y.S.2d 886 (2d Dept. 2003). 42. Here, Plaintiff, YEHUDA SOUSSAN, submits, inter alia, the pleadings, a certified MV104, and his sworn affidavit to demonstrate his prima facie entitlement to summary judgment on the issue of liability as a matter of law. Plaintiff, YEHUDA SOUSSAN, affirms that on February 1, 2020, at approximately 6:20 p.m., Plaintiff was a passenger in a vehicle operated by Plaintiff, BORIS SOFIEV, on the westbound Long Island Expressway, Queens, New York, when said vehicle was rear-ended by a vehicle owned and operated by Defendants herein. See Plaintiff’s, YEHUDA SOUSSAN, “Exhibit D.” 43. The admissible evidence submitted herein demonstrates that Plaintiff, YEHUDA SOUSSAN, was an innocent passenger who did not cause or contribute to the happening of the accident. See Plaintiff’s, YEHUDA SOUSSAN, Exhibit “D.” 44. As such, Plaintiff passenger should be awarded summary judgment on the issue of liability as a matter of law even if the court determines that Defendants, ENERGY TRUCKING LLC. and JUAN DEPENA, and Plaintiff, BORIS SOFIEV, are each partially responsible and/or liable for the happening of the subject accident. 45. Plaintiff, YEUDA SOUSSAN, further submits that the court should enter an order striking Defendants’ affirmative defenses of culpable conduct, contributory negligence, 11 of 19 FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 comparative negligence and/or assumption of risk as to Plaintiff passenger if Defendants fail to demonstrate, though admissible evidence, that Plaintiff passenger caused or contributed to the happening of the subject rear-end accident. POINT IV DEFENDANTS DO NOT HAVE A NON-NEGLIGENT EXCUSE 46. A driver following another vehicle is under a duty to maintain a safe distance between the two vehicles. [(McKinney’s Vehicle and Traffic Law 1129(a)]. The failure to maintain a safe distance, in the absence of an adequate, non-negligent explanation, constitutes negligence on the part of the following driver as a matter of law. See Rebecchi v. Whitmore, 172 A.D.2d 600 (2d Dept 1991); Siberman v. Surry Cadillac Limousine Service, Inc., 109 A.D.2d 833 (2d Dept 1985). 47. The Appellate Division has held in numerous cases that absent some excuse by Defendant, Plaintiff will be entitled to Summary Judgment if Plaintiff’s vehicle is hit in the rear by Defendant. Florez v. Diaz, 243 A.D.2d 607 (2d Dept 1997); Kastanis v. Del Fuoco, 241 A.D.2d 541 (2d Dept 1997) where the Appellate Division held that the Supreme Court correctly determined that the rear-end vehicular collision which occurred in this case created an inference of negligence and a prima facie case of liability against the operator of the tractor-trailer which struck the Plaintiff’s vehicle, imposing a duty of explanation upon the operator of the tractor-trailer; Barile V. Lazzarini, 222 A.D.2d 635 (2d Dept 1995); Pincus v. Cohen, 198 A.D.2d 405 (2d Dept 1993). Inasmuch as the operator of the offending vehicle failed to come forward with an adequate, no negligent explanation. See Gambino v. City of New York, 205 A.D.2d 583 (2d Dept 1994), partial summary judgment was properly granted in favor of Plaintiffs; Rios v. Bryant, 234 A.D.2d 441 (2d Dept 1996) 12 of 19 FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 where the driver of a vehicle stopped in the middle lane of the highway while attempting to change lanes was entitled to Summary Judgment since the sole proximate cause of the accident was the actions of the vehicle that struck his vehicle in the rear. Ribowksy v. Kashinsky, 234 A.D.2d 353 (2d Dept 1996); Maxwell v. Lobenburg, 227 A.D.2d 598 (2d Dept 1996); Corbly v. Butler 226 A.D.2d 418 (2d Dept 1996); Cohen v. Terranella, 112 A.D.2d 264 (2d Dept 1995). 48. Here, Defendant driver, JUAN DEPENA, is negligent as a matter of law for violating the applicable sections of the VTL cited herein and for rear-ending the vehicle occupied by Plaintiff, YEHUDA SOUSSAN. Defendant failed to maintain a safe distance behind the vehicle occupied by Plaintiff, YEHUDA SOUSSAN, failed to have his vehicle under proper speed and control, and failed to observe the vehicle occupied by Plaintiff YEHUDA SOUSSAN, which was in plain view, prior to rear-ending the vehicle occupied by Plaintiff, YEHUDA SOUSSAN. Defendant’s aforementioned negligent is the sole proximate cause of the subject rear-end accident. 49. As Plaintiff, YEHUDA SOUSSAN, has satisfied his initial prima facie entitlement to summary judgment on the issue of liability, Defendants must submit sufficient admissible evidence to raise a triable issue of fact on liability to survive summary judgment. 50. Plaintiff, YEHUDA SOUSSAN, respectfully submits that he is entitled to summary judgment on the issue of liability as Defendants do not have a legally sufficient, non- negligent excuse for rear-ending the vehicle occupied by Plaintiff, YEHUDA SOUSSAN. 51. Plaintiff, YEHUDA SOUSSAN, further submits that the court should enter an order striking Defendants’ affirmative defenses of culpable conduct, contributory negligence and/or assumption of risk as Plaintiff passenger did not cause or contribute to the happening 13 of 19 FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 of the subject rear-end accident. POINT V THE COURT SHOULD STRIKE DEFENDANTS’ AFFIRMATIVE DEFENSES OF CULPABLE CONDUCT, CONTRIBUTORY NEGLIGENCE AND/OR ASSUMPTION OF RISK AS PLAINTIFF PASSENGER, YEHUDA SOUSSAN, DID NOT CAUSE OR CONTRIBUTE TO THE HAPPENING OF THE SUBJECT REAR-END ACCIDENT 52. As a threshold matter, the question of whether Plaintiff might be comparatively negligent (which in any event there is no evidence of) is immaterial as to whether he is entitled to summary judgment on liability. In the recent case of Rodriguez v. City of New York, 2018 NY Slip Op 02287 (2018), the Court of Appeals held that a plaintiff “does not bear [the] burden” of establishing freedom from comparative negligence in order to obtain partial summary judgment in a negligence case. In particular, because the plaintiff’s culpable conduct may be claimed “in diminution of damages” under CPLR § 1412, but is not a complete defense of the action, “[placing the burden on the plaintiff to show an absence of comparative fault is inconsistent with the plain language of CPLR § 1412.” Id. at 3-4 (“a plaintiff’s comparative negligence is no longer a complete defense to be pleaded and proven by the plaintiff, but rather is only relevant to the mitigation of plaintiff’s damages and should be pleaded and proven by the defendant”). Thus, in sum, “to be entitled to partial summary judgment 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 6; Edgerton v. City on New York, 160 AD3d 809 (2d Dept 2018). 53. Although Plaintiff in moving for summary judgment does not bear the burden of establishing the absence of his or her own comparative fault, the issue of comparative fault can be decided in the context of a summary judgment motion where, as here, Plaintiff moves to strike the affirmative defense. This is supported by the Appellate Division’s 14 of 19 FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 recent decisions. 54. The holding by the Second Department in Wray v Galella, 172 AD3d 1446 (2d Dept 2019), supports a finding that the court should dismiss the affirmative defenses raised by defendant as to plaintiff’s comparative negligence, as contained in defendants’ answer. To quote the court, “To be entitled to partial summary judgment a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault” Rodriguez v City of New York, 31 NY3d at 324-325 (2018); Odetalla v Rodriguez, 165 AD3d 826, 826 (2d Dept 2018); Outar v Sumner, 164 AD3d 1356, 1356 (2d Dept 2018); Edgerton v City of New York, 160 AD3d 809, 811 (2d Dept 2018)]. Even though a plaintiff is no longer required to establish his or her freedom from comparative negligence, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence. (emph. added) Poon v Nisanov, 162 AD3d 804, 808 (2d Dept 2018). Id. 55. This was confirmed by the Second Department in Hai Xiao v Martinez, 185 A.D.3d 1014 (2d Dept 2020), which stemmed from a pedestrian knockdown. The lower court denied plaintiff’s motion for summary judgment and to strike the affirmative defense alleging comparative negligence. The Second Department reversed, holding that: A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries. Tsyganash v Auto Mall Fleet Mgt., Inc., 163 AD3d 1033, 1033-1034 (2d Dept 2018); Rodriguez v City of New York, 31 NY3d 312 (2018). “To be entitled to partial summary judgment a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault” Rodriguez v City of New York, 31 NY3d at 324-325 (2018). Even though a plaintiff is no longer required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence. (emph. added) Higashi v M & R Scarsdale Rest., LLC, 176 AD3d 788, 789 (2d Dept 2019), 15 of 19 FILED: KINGS COUNTY CLERK 10/13/2021 03:49 PM INDEX NO. 523027/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/13/2021 and; Wray v Galella, 172 AD3d 1446, 1447 (2d Dept 2019). Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting, inter alia, her own affidavit, which demonstrated that she was walking within a crosswalk with the pedestrian signal in her favor when Martinez, who was attempting to make a left turn, failed to yield the right-of-way and struck her. Rodriguez v City of New York, 31 NY3d 312 (2018); Gaston v Vertsberger, 176 AD3d 919, (2d Dept 2019); Rodriguez-Garcia v Bobby's Bus Co., Inc., 175 AD3d 631, 632 (2d Dept 2019); Lazarre v Gragston, 164 AD3d 574, 575 (2d Dept 2018). The plaintiff's affidavit was also sufficient to establish, prima facie, that she was not at fault in the happening of the accident as it demonstrated that she exercised due to