Motion-Secondary: Sarah M. Lanza v. Santo Mercedes Baez, Guma Construction

On November 18, 2020 a Motion-Secondary was filed involving a dispute between Sarah M. Lanza, and Guma Construction, Santo Mercedes Baez, for Torts - Motor Vehicle in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 03/03/2021 10:07 PM INDEX NO. 523020/2020
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 03/03/2021

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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SARAH M. LANZA, Index No.: 523020/2020

Plaintiff, AFFIRMATION IN
OPPOSITION TO
-against- PLAINTIFF’S MOTION
FOR PARTIAL
SANTO MERCEDES BAEZ and GUMA SUMMARY JUDGMENT
CONSTRUCTION.,
Hon. Mark I. Partnow
Defendants.
-------------------------------------------------------------------X

ARLENE E. LEWIS, an attorney admitted and licensed to practice before the Courts of the

State of New York, hereby affirms the following to be true under the penalties of perjury:

1. I am associated with the LAW OFFICE OF KEVIN J. PHILBIN, attorneys for

defendants, SANTO MERCEDES BAEZ and GUMA CONSTRUCTION CORP. (hereinafter

referred collectively as “Defendants”). I am fully familiar with the facts and circumstances of this

action and the proceedings herein, based upon a review of the file maintained by my office.

2. This Affirmation is respectfully submitted in opposition to the motion of plaintiff,

SARAH M. LANZA (hereinafter “plaintiff”) which seeks an order granting plaintiff partial

Summary Judgment, pursuant to CPLR section 3212, on the issue of liability. It is respectfully

submitted that plaintiff’s motion should be denied in its entirety because the motion is premature;

plaintiff fails to prove a prima facie entitlement to judgment as a matter of law; and, there are

material, triable issues of fact for determination by a jury.

PROCEDURAL HISTORY

3. Plaintiff filed a Summons and Complaint on or about November 18, 2020. See

Exhibit A (Docket # 7) to plaintiff’s motion. Defendants served their Verified Answer together

with a Demand for a Verified Bill of Particulars and Combined Demands on December 22, 2020.

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See the copy of Defendants’ Verified Answer annexed as Exhibit B to plaintiff’s motion. Copies

of Defendants’ discovery demands are annexed collectively hereto as Exhibit “A”. To date, no

response has been received from plaintiff to said demands.

4. On January 12, 2021, less than 3 weeks after issue was joined by defendants,

plaintiff filed the instant motion.

5. On or about February 18, 2021, plaintiff’s counsel filed a Request for a Preliminary

Conference annexed hereto as Exhibit “B”. A preliminary conference has not yet been held in this

case.

LEGAL ARGUMENT

6. The proponent of a motion for summary judgment must make a prima facie

showing of entitlement to judgment as a matter of law, tendering sufficient evidence to

demonstrate that there are no triable issues of fact. (Zuckerman v New York, 49 NY2d 557 [1980]);

(Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]) .

7. Summary judgment is a drastic remedy because it deprives a party of a trial.

(Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]) . As such, summary judgment

is appropriate only where the movement establishes by proof in admissible form that there are no

material and triable issues of fact to be determined. Sillman, supra at 404; (Alvarez v Prospect

Hosp., 68 NY2d 320 [1986]). Indeed, CPLR §3212(b) requires that the movant demonstrate the

absence of genuine issues of material fact on every relevant issue raised by the pleadings. See

(Stone v Cont. Ins. Co., 234 AD2d 282 [2d Dept 1996]) .

8. Negligence actions do not ordinarily lend themselves to summary judgment

because the reasonableness of defendant’s conduct is a question for the jury. (Davis v Federated

Dept. Stores, 227 AD2d 514 [2d Dept 1996]) (holding that even where the facts are uncontested,

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summary judgment is rarely appropriate and negligence cases because the issue of whether the

parties acted reasonably under the circumstances can rarely be resolved as a matter of law).

9. It is also well established that the Court’s function on a motion for summary

judgment is issue finding rather than issue determination. (LaGrega v Farrell Lines, Inc., 156

AD2d 205 [1st Dept 1989]). The movant 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

by producing evidentiary proof in admissible form. (Wells v Monsen, 7 AD3d 518 [2d Dept 2004])

10. Regardless of the sufficiency of the opposition papers, in the absence of admissible

evidence sufficient to preclude an immaterial issue of fact, summary judgment is unavailable. See

(Lamberta v Long Is. Rail Rd., 51 AD2d 730 [2d Dept 1976]) ; (Peskin v NY City Tr. Auth., 304

AD2d 634 [2d Dept 2003]) .

11. Further, when deciding whether to grant summary judgment, the parties’ competing

contentions must be viewed and “the evidence must be construed” in the light most favorable to

the party opposing the motion. See (Mar. Midland Bank, N.A. v Dino & Artie's Automatic

Transmission Co., 168 AD2d 610 [2d Dept 1990]) ; (Lakeside Constr., Inc. v Depew & Schetter

Agency, Inc., 154 AD2d 513 [2d Dept 1989]) . As a result, respectfully, this Court must accept

defendants’ contentions regarding the conduct of plaintiff and non-parties which has not yet been

fully established during discovery, which may have caused or contributed to the accident. An

application of the above referenced principles here requires that plaintiff’s instant motion for

summary judgment be denied.

A. Plaintiff’s Motion Should Be Denied Because It is Premature

12. A motion for summary judgment is premature when the motion is made shortly

after joinder of issue and before pretrial discovery has begun or is completed. (Taylor v Krebs, 90

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AD3d 645 [2d Dept 2011]) (“It was premature for the Supreme Court to grant plaintiffs motion

for summary judgment on the issue of liability prior to the exchange of any discovery”) (internal

citations omitted); (Long Is. Power Auth. v Anderson, 67 AD3d 652 [2d Dept 2009]) (holding that

plaintiff’s motion for summary judgment was premature in light of the “total absence of any pre-

trial discovery”) (internal citations omitted); (Breytman v Olinville Realty, LLC, 54 AD3d 703 [2d

Dept 2008]). This is especially true where, as in the instant case, deposition have not been

conducted. Breytman, supra; (Bond v DeMasco, 84 AD3d 1292 [2d Dept 2011]).

13. It is error to grant a plaintiff summary judgment prior to the completion of

discovery because the defendant has not had a fair opportunity to discovery of the extent of

plaintiff’s culpable conduct and/or injuries. (Ferrara v Maio, 221 AD2d 588 [2d Dept 1995])

(Emphasis supplied). As such, denial of plaintiff’s motion for summary judgment is not only

warranted. Denial is required because discovery, including, but not limited to depositions have not

been conducted. (Taylor v Krebs, 90 AD3d 645 [2d Dept 2011]) ; (Ortiz v J.P. Jack Corp., 286

AD2d 671 [2d Dept 2001]).

14. Here plaintiffs motion was made a mere 3 weeks after service of defendants’

answer, before any discovery or depositions were conducted. Defendants clearly have not had a

reasonable opportunity to conduct full discovery of the extent of plaintiffs culpable conduct, or

whether plaintiff’s claimed injuries were caused by the alleged accident or constitute serious

injuries within the meaning of New York State Insurance Law § 5102(d), which would preclude

plaintiff from recovering any alleged damages in this action in the absence of such a serious injury.

15. Additionally as set forth in the accompanying Affidavit of defendant GUMA

CONSTRUCTION CORP. by Zalman Lebovic, sworn to on March 3, 2021, according to the

Police Accident Report, plaintiff was not injured on the date of the accident. See Exhibit C to

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plaintiff’s motion (Docket # 9). A copy of the Affidavit of GUMA CONSTRUCTION CORP. by

Zalman Lebovic is the next hereto as Exhibit “C”.

16. Here, as in Taylor, supra, plaintiff served her motion for summary judgment very

shortly after issue was joined and before discovery has been conducted and before any witnesses

have appeared for depositions thus the parties have not been able to determine if plaintiff or

nonparty took any action or failed to take any action that caused or contributed to the alleged

accident. (Taylor v Krebs, 90 AD3d 645 [2d Dept 2011]). It is crucial that defendants be given

the opportunity to depose not only plaintiff but also any potential witnesses to the incident.

B. Plaintiff Failed to Establish a Prima Facie Case of Entitlement to Judgment as a Matter
of Law.

17. It is well established that “’[t]o prevail on a motion for summary judgment on the

issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was

negligent, but also that the plaintiff was free from comparative fault.’” (Moluh v Vord, 143 AD3d

680 [2d Dept 2016]) (internal citations omitted); (Cruz v Finney, 148 AD3d 772 [2d Dept 2017]).

The Courts have frequently denied plaintiffs’ summary judgment motions where the evidence

shows that plaintiff may be comparatively negligent.

18. Issues of comparative negligence preclude granting summary judgment prior to the

completion of discovery because they are matters which may be probed during pre-trial discovery.

(Rodriguez v Logan, 188 AD2d 522 [2d Dept 1992]). Having not had any discovery, defendants

have not been afforded the opportunity to probe matters involving the subject accident.

Accordingly, plaintiff’s motion for summary judgment should be denied.

C. Issues of Fact Preclude Summary Judgment.

19. Even if the Court determines that the instant motion is not premature, summary

judgment must also be denied as defendants have raised triable issues of fact. See (Zuckerman v

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New York, 49 NY2d 557 [1980]); (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395

[1957]), supra. Plaintiff summarily asserts that defendants are at fault for the subject accident but

has not provided any responses to defendants’ discovery demands or otherwise explained

plaintiff’s actions with respect to the subject accident. See the Affirmation of Ruben Davidoff,

Esq., dated January 12, 2021 at paragraph 29.

Conclusion

20. In summary, plaintiff's motion for summary judgment on the issue of liability

should be denied in its entirety because the motion is clearly premature. Plaintiff has failed to

respond to any discovery demands, including but not limited to the demand for a Verified Bill of

Particulars and has not presented sufficient evidence to establish a prima facie entitlement to

summary judgment against defendants for the alleged accident. Additionally she has not

established that she is free from comparative negligence, or that she sustained a serious injury as

defined in New York State Insurance Law § 5102. Moreover, defendants have raised genuine,

material, triable issues of fact for the jury to decide. At the very least, defendants are entitled to

discovery on the relative culpability of plaintiff.

WHEREFORE, Defendants respectfully request that this Court deny plaintiff’s motion in

its entirety, together with such other and further relief as this Court may deem just and proper.

Dated: New York, New York
March 3, 2021

__________________________
Arlene E. Lewis, Esq.

To: DAVIDOFF & ASSOCIATES, P.C.
Attorneys for Plaintiff
108-18 Queens Boulevard, Suite 404
Forest Hills, New York 11375
(718) 268-8800

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It is hereby certified, pursuant to Section 202.8-b of the Uniform Civil Rules that the within
Affirmation is 1,804 words in length.

__________________________
Arlene E. Lewis, Esq.

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Document Filed Date

March 03, 2021

Case Filing Date

November 18, 2020

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