Preview
FILED: SUFFOLK COUNTY CLERK 09/19/2022 04:23 PM INDEX NO. 611178/2021
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/19/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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NICHOLAS DASSLER,
REPLY AFFIRMATION
Plaintiff,
Index No. 611178/2021
-against-
Hon. Linda Kevins, J.S.C.
DANIEL B. KREMEN and GOLDEN HAWK LLC, Appellate Division Docket No.
2022-04281
Defendants.
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JACLYN C. HOSTY, an attorney duly admitted to practice law before the Courts
of the State of New York, affirms the truth of the following under the penalties of perjury and
pursuant to CPLR 2106:
1. I am an associate the firm of Smith Mazure, P.C., attorney for Defendants Golden
Hawk, LLC and Daniel B. Kremen herein and I am fully familiar with the facts and
circumstances surrounding the instant action.
2. I make this Affirmation in Reply to the Affirmation in Opposition submitted by
counsel for plaintiff Rosenberg & Gluck, L.L.P. in further support of the within motion to
reargue Hon. Paul J. Baisley, Jr.’s Order granting plaintiff’s motion for summary judgment on
liability and dismissing defendants’ affirmative defense of culpable conduct.
3. Throughout his Affirmation in Opposition, plaintiff’s counsel contends that
Justice Baisley appropriately found that defendants failed to raise a triable issue of fact as to
whether there was a non-negligent explanation for the accident. As explained in the underlying
papers, the Court relied on the standard for rear-end motor vehicle accidents where there is a
presumption of negligence. However, this was not a rear-end accident and that standard does not
apply. The burden of establishing a non-negligent explanation for an accident is reserved for
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FILED: SUFFOLK COUNTY CLERK 09/19/2022 04:23 PM INDEX NO. 611178/2021
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/19/2022
rear-end collisions where there is a presumption of negligence, not for side-swipe accidents as in
the case at bar
4. Moreover, plaintiff’s counsel asserts that Justice Baisley relied upon plaintiff’s
affidavit and concluded that the proof offered by plaintiff was sufficient to make out a prima
facie case of liability against defendant. However, plaintiff’s bare bones affidavit offered no
information as to the facts surrounding the accident or any demonstration that the affirmative
defense as to culpable conduct is without merit as a matter of law. As discussed in detail in the
underlying papers, plaintiff did not meet his burden of demonstrating that the affirmative defense
as to culpable conduct is without merit as a matter of law. As such, the Court should still direct a
liability trial to determine plaintiff’s comparative negligence as plaintiff has failed to establish
his freedom from same.
5. Furthermore, plaintiff argues that the issue of proximate cause should be
disregarded in the absence of any proof to suggest any cause other than the actions of defendant.
However, as laid out in the underlying papers, plaintiff states that he was traveling in the right
hand lane in the northbound direction of Deer Park Road for several miles and observed
defendants’ tractor trailer immediately adjacent to the travel lane he was occupying and as he
continued in his lane of travel the tractor trailer “suddenly and without warning” attempted to
switch into his lane. However, defendant operator, Mr. Kremen, submitted an affidavit
indicating that there was no vehicle in the right hand lane when he looked in his mirrors and that
he had engaged his right hand turn signal to indicate that he would be merging into the right
hand lane, which raises a question of fact as to where and how plaintiff was operating his vehicle
at the time of the collision.
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FILED: SUFFOLK COUNTY CLERK 09/19/2022 04:23 PM INDEX NO. 611178/2021
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WHEREFORE, it is respectfully requested that the Court grant the instant motion
in its entirety and grant such other and further relief as to the Court may seem just, proper, and
equitable.
Dated: New York, New York
September 19, 2022
JACLYN C. HOSTY
NIC-00913/205
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NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/19/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
NICHOLAS DASSLER,
Plaintiff, INDEX NO. 611178/2021
-against-
DANIEL B. KREMEN and GOLDEN HAWK LLC,
Defendants.
REPLY AFFIRMATION
SMITH MAZURE, P.C.
Attorneys for Defendants
Golden Hawk, LLC and Daniel B. Kremen
111 John Street
New York, NY 10038
(212) 964-7400
NIC-00913
CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §130-1.1a
Jaclyn C. Hosty hereby certifies
to the best of the undersigned’s knowledge and information and belief and after an inquiry
reasonable under the circumstances, that, pursuant to 22 N.Y.C.R.R. §130-1.1a-b, (1) the contentions contained in the annexed document are
not frivolous as defined in section 130-1.1(c) of this Subpart, and (2) where the paper is an initiating pleading, (i) the matter was not obtained
through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or
sharing in any fee earned there from, and (ii) the matter was not obtained in violation of 22 NYCRR 1200.41-a [DR 7-111].
Dated: New York, New York JACLYN C. HOSTY
September 19, 2022
PLEASE TAKE NOTICE
X CERTIFICATION PURSUANT TO §202.8-b (a), (b), &(c)
Jaclyn C. Hosty hereby certifies that
the attached is in compliance with New York’s Uniform Civil Rules for the Supreme Court,
Section 202.8-b based on the her knowledge, and understanding of
the provisions for
word count calculations, as set forth in
Section 202.8-b, article (b), and based on word count number appearing within the
word processing system used to prepare this
document, as set forth
by Section 202.8-b article(c), in so much as the attached
has not exceed the
7,000 word count limitation as
stated in
§202.8-b, article (a)(i) as to affidavits, affirmations, briefs and memoranda of law in chief, Article (a) ii, as to
4,200 word
count limitation for reply affidavits, affirmations, and memoranda and said documents do not contain any arguments that do not
respond or relate to those made in the Memoranda in chief.
CERTIFICATION PURSUANT TO §202.8-b (d)
Jaclyn C. Hosty hereby certifies that to knowledge, information and belief based on the calculation provisions of section 202.8-b (b),
and relying on the word count information provided by the word processing system used to prepare this document, as stated section
202.8-b article(c), the attached, is in compliance with word count limitation of which was extended by the court based on the
undersigned’s application, and which was noticed to all parties in compliance with New York’s Uniform Civil Rules for the Supreme
Court, Section 202.8-b (d).
205
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Preview
FILED: SUFFOLK COUNTY CLERK 09/19/2022 04:23 PM INDEX NO. 611178/2021 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/19/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------------------------------------------------------------------------X NICHOLAS DASSLER, REPLY AFFIRMATION Plaintiff, Index No. 611178/2021 -against- Hon. Linda Kevins, J.S.C. DANIEL B. KREMEN and GOLDEN HAWK LLC, Appellate Division Docket No. 2022-04281 Defendants. -------------------------------------------------------------------------X JACLYN C. HOSTY, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following under the penalties of perjury and pursuant to CPLR 2106: 1. I am an associate the firm of Smith Mazure, P.C., attorney for Defendants Golden Hawk, LLC and Daniel B. Kremen herein and I am fully familiar with the facts and circumstances surrounding the instant action. 2. I make this Affirmation in Reply to the Affirmation in Opposition submitted by counsel for plaintiff Rosenberg & Gluck, L.L.P. in further support of the within motion to reargue Hon. Paul J. Baisley, Jr.’s Order granting plaintiff’s motion for summary judgment on liability and dismissing defendants’ affirmative defense of culpable conduct. 3. Throughout his Affirmation in Opposition, plaintiff’s counsel contends that Justice Baisley appropriately found that defendants failed to raise a triable issue of fact as to whether there was a non-negligent explanation for the accident. As explained in the underlying papers, the Court relied on the standard for rear-end motor vehicle accidents where there is a presumption of negligence. However, this was not a rear-end accident and that standard does not apply. The burden of establishing a non-negligent explanation for an accident is reserved for 1 of 4 FILED: SUFFOLK COUNTY CLERK 09/19/2022 04:23 PM INDEX NO. 611178/2021 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/19/2022 rear-end collisions where there is a presumption of negligence, not for side-swipe accidents as in the case at bar 4. Moreover, plaintiff’s counsel asserts that Justice Baisley relied upon plaintiff’s affidavit and concluded that the proof offered by plaintiff was sufficient to make out a prima facie case of liability against defendant. However, plaintiff’s bare bones affidavit offered no information as to the facts surrounding the accident or any demonstration that the affirmative defense as to culpable conduct is without merit as a matter of law. As discussed in detail in the underlying papers, plaintiff did not meet his burden of demonstrating that the affirmative defense as to culpable conduct is without merit as a matter of law. As such, the Court should still direct a liability trial to determine plaintiff’s comparative negligence as plaintiff has failed to establish his freedom from same. 5. Furthermore, plaintiff argues that the issue of proximate cause should be disregarded in the absence of any proof to suggest any cause other than the actions of defendant. However, as laid out in the underlying papers, plaintiff states that he was traveling in the right hand lane in the northbound direction of Deer Park Road for several miles and observed defendants’ tractor trailer immediately adjacent to the travel lane he was occupying and as he continued in his lane of travel the tractor trailer “suddenly and without warning” attempted to switch into his lane. However, defendant operator, Mr. Kremen, submitted an affidavit indicating that there was no vehicle in the right hand lane when he looked in his mirrors and that he had engaged his right hand turn signal to indicate that he would be merging into the right hand lane, which raises a question of fact as to where and how plaintiff was operating his vehicle at the time of the collision. 2 of 4 FILED: SUFFOLK COUNTY CLERK 09/19/2022 04:23 PM INDEX NO. 611178/2021 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/19/2022 WHEREFORE, it is respectfully requested that the Court grant the instant motion in its entirety and grant such other and further relief as to the Court may seem just, proper, and equitable. Dated: New York, New York September 19, 2022 JACLYN C. HOSTY NIC-00913/205 3 of 4 FILED: SUFFOLK COUNTY CLERK 09/19/2022 04:23 PM INDEX NO. 611178/2021 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 09/19/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK NICHOLAS DASSLER, Plaintiff, INDEX NO. 611178/2021 -against- DANIEL B. KREMEN and GOLDEN HAWK LLC, Defendants. REPLY AFFIRMATION SMITH MAZURE, P.C. Attorneys for Defendants Golden Hawk, LLC and Daniel B. Kremen 111 John Street New York, NY 10038 (212) 964-7400 NIC-00913 CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §130-1.1a Jaclyn C. Hosty hereby certifies to the best of the undersigned’s knowledge and information and belief and after an inquiry reasonable under the circumstances, that, pursuant to 22 N.Y.C.R.R. §130-1.1a-b, (1) the contentions contained in the annexed document are not frivolous as defined in section 130-1.1(c) of this Subpart, and (2) where the paper is an initiating pleading, (i) the matter was not obtained through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned there from, and (ii) the matter was not obtained in violation of 22 NYCRR 1200.41-a [DR 7-111]. Dated: New York, New York JACLYN C. HOSTY September 19, 2022 PLEASE TAKE NOTICE X CERTIFICATION PURSUANT TO §202.8-b (a), (b), &(c) Jaclyn C. Hosty hereby certifies that the attached is in compliance with New York’s Uniform Civil Rules for the Supreme Court, Section 202.8-b based on the her knowledge, and understanding of the provisions for word count calculations, as set forth in Section 202.8-b, article (b), and based on word count number appearing within the word processing system used to prepare this document, as set forth by Section 202.8-b article(c), in so much as the attached has not exceed the 7,000 word count limitation as stated in §202.8-b, article (a)(i) as to affidavits, affirmations, briefs and memoranda of law in chief, Article (a) ii, as to 4,200 word count limitation for reply affidavits, affirmations, and memoranda and said documents do not contain any arguments that do not respond or relate to those made in the Memoranda in chief. CERTIFICATION PURSUANT TO §202.8-b (d) Jaclyn C. Hosty hereby certifies that to knowledge, information and belief based on the calculation provisions of section 202.8-b (b), and relying on the word count information provided by the word processing system used to prepare this document, as stated section 202.8-b article(c), the attached, is in compliance with word count limitation of which was extended by the court based on the undersigned’s application, and which was noticed to all parties in compliance with New York’s Uniform Civil Rules for the Supreme Court, Section 202.8-b (d). 205 4 of 4